Popular Constitutionalism in State and Nation1
G. ALAN TARR
TABLE OF CONTENTS
I.
INTRODUCTION............................................................................ 238
II. THE POPULAR ROLE IN AMERICAN CONSTITUTIONALISM ........... 238
III. FEDERAL CONSTITUTIONAL CHANGE AND POPULAR
CONSTITUTIONALISM: THE FOUNDING PERIOD ........................... 240
IV. CONSTITUTIONAL CHANGE UNDER ARTICLE V........................... 245
V. POPULAR CONSTITUTIONALISM AND ARTICLE V ........................ 248
VI. FEDERAL CONSTITUTIONAL CHANGE OUTSIDE OF
ARTICLE V? ................................................................................ 250
A. Akhil Amar ........................................................................... 250
B. Bruce Ackerman ................................................................... 252
VII. STATE CONSTITUTIONAL CHANGE AND POPULAR
CONSTITUTIONALISM .................................................................. 255
VIII. STATE CONSTITUTIONAL CREATION AND POPULAR
CONSTITUTIONALISM .................................................................. 257
IX. THE POPULAR ROLE IN AUTHORIZING THE WRITING OF
CONSTITUTIONS .......................................................................... 258
X. THE POPULAR ROLE IN APPROVING CONSTITUTIONS .................. 260
XI. POPULAR CONSTITUTIONALISM AND STATE CONSTITUTIONAL
DESIGN ....................................................................................... 262
XII. STATE CONSTITUTIONAL REVISION AND POPULAR
CONSTITUTIONALISM .................................................................. 264
XIII. THE PROPOSAL OF STATE CONSTITUTIONAL AMENDMENTS
AND POPULAR CONSTITUTIONALISM ........................................... 269
XIV. THE RATIFICATION OF STATE CONSTITUTIONAL AMENDMENTS
AND POPULAR CONSTITUTIONALISM ........................................... 274
XV. STATE CONSTITUTIONALISM AS POPULAR
CONSTITUTIONALISM .................................................................. 275
XVI. CONCLUDING THOUGHTS ............................................................ 276
1 This
Article is derived from THE PEOPLE’S CONSTITUTIONS: POPULAR
CONSTITUTIONALISM IN STATE AND NATION, to be published by Oxford University Press in
2016.
 Director, Center for State Constitutional Studies, and Board of Governors Professor
of Political Science, Rutgers University–Camden. I would like to thank R.J. Norcia for his
excellent research assistance. I would also like to thank Rutgers University–Camden and
the James Madison Program in American Ideals and Institutions at Princeton University for
their support of this research.
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I. INTRODUCTION
In 2013 Emily Zackin published Looking for Rights in All the Wrong
Places, a book detailing the development of positive-rights guarantees in state
constitutions.2 Had she not done so, I might have been tempted to entitle this
Article Looking for Popular Constitutionalism in All the Wrong Places. The
literature on popular constitutionalism has focused exclusively on the federal
Constitution and has found, perhaps unsurprisingly, relatively few episodes of
popular constitutionalism, particularly in recent years.3 Proponents of popular
constitutionalism have been forced to conflate it with departmentalism in order
to be able to suggest its relevance in the present day.4 Yet if one turns one’s
attention to the American states, a very different picture emerges. As this
Article demonstrates, popular constitutionalism has flourished in the states,
with popular conventions creating new constitutions and revising old ones,
particularly in the nineteenth century, and with the people in the twentieth and
twenty-first centuries ratifying (and in states with the constitutional initiative,
proposing as well) myriad changes, both major and minor, to state
constitutions. Whereas popular constitutionalism at the federal level has been
episodic, involving popular movements acting outside the normal political
channels, the states have institutionalized popular constitutionalism, providing
regular opportunities for popular influence on the substance and interpretation
of state constitutions; and majorities within the states have proved willing,
even eager, to avail themselves of those opportunities.5
This Article looks first at popular constitutionalism at the federal level,
considering both the limited opportunities for popular input via the Article V
amendment procedures and the similarly limited opportunities outside those
procedures. It then turns to the opportunities available to state publics under
their state constitutions, noting the myriad constitutionally prescribed
opportunities for popular constitutionalism and in the effect of those
opportunities in discouraging the use of extraconstitutional mechanisms for
popular input. It concludes by considering the implications of the dual state
and federal constitutional traditions for thinking about the role that the people
play—and should play—in American constitutionalism.
II. THE POPULAR ROLE IN AMERICAN CONSTITUTIONALISM
The creation of constitutions and—where necessary—their revision
(replacement) or amendment are among the most fundamental tasks that a
2 See generally EMILY ZACKIN, LOOKING FOR RIGHTS IN ALL THE WRONG PLACES:
WHY STATE CONSTITUTIONS CONTAIN AMERICA’S POSITIVE RIGHTS (2013).
3 See, e.g., BRUCE ACKERMAN, 1 WE THE PEOPLE: FOUNDATIONS (1991) [hereinafter
ACKERMAN, FOUNDATIONS].
4 Larry Kramer, Response, 81 CHI.-KENT L. REV. 1173, 1182 (2006) [hereinafter
Kramer, Response].
5 See infra notes 57–68 and accompanying text.
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political society can undertake. From the very outset, it was understood that it
was the people who should undertake these tasks of constitutional creation,
revision, and amendment. The right of the people to create and revise their
systems of government was recognized in the Declaration of Independence,
enshrined in state constitutions, and endorsed by political figures from across
the political spectrum. James Madison, though hardly a proponent of frequent
recurrence to the people on constitutional matters, proposed that the right of
the people to create and re-create their fundamental law be enshrined in the
federal Constitution; and although this provision was dropped by the House
committee that reviewed his proposed Bill of Rights, the change did not signal
disagreement about the people’s right to make and unmake constitutions.6
What does this right entail? It means, at a minimum, that the people have the
power to decide whether or not to create or revise a constitution; that they
should determine its contents or choose those who engage in drafting the
constitution; and that they should vote, again either directly or indirectly, on
whether to adopt what the drafters propose. The popular role might also
extend, perhaps more controversially, to a power to instruct those they elect as
their convention delegates as to what the draft constitution should or should
not contain.7 Finally, the recognition of this popular authority carries with it
6 Madison’s proposal, which drew on a similar provision in the Virginia Declaration
of Rights, read: “That the people have an indubitable, unalienable, and indefeasible right to
reform or change their government, whenever it is found adverse or inadequate to the
purposes of its institution.” Madison proposed that all the rights guarantees he was
proposing be inserted into the body of the Constitution. Perhaps this provision, as well as
the other declaration of principle that he sought to place at the beginning of the
Constitution, were eliminated when the decision was made to append the bill of rights to
the Constitution. See CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM
THE FIRST FEDERAL CONGRESS 11–14 (Helen E. Veit et al. eds., 1991). For Madison’s
famed skepticism about frequent constitutional change, see THE FEDERALIST NO. 49 (James
Madison). For Thomas Jefferson’s enthusiasm for periodic recurrence to the people for
constitutional change, see Letter from Thomas Jefferson to Samuel Kercheval (July 12,
1816), in THE PORTABLE THOMAS JEFFERSON 552, 559 (Merrill D. Peterson ed., 1975).
Jefferson wrote in the same letter:
Some men look at constitutions with sanctimonious reverence, and deem them
like the ark of the covenant, too sacred to be touched. They ascribe to the men of the
preceding age a wisdom more than human, and suppose what they did to be beyond
amendment. I knew that age well; I belonged to it, and labored with it. It was very like
the present, but without the experience of the present; and forty years of experience in
government is worth a century of book-reading . . . .
Id. at 558–59.
7 This might occur at either the federal or state level. At the Philadelphia Convention
of 1787, for example, George Read of Delaware “remind[ed] the Committee that the
deputies from Delaware were restrained by their commission from assenting to any change
of the rule of suffrage, and in case such a change should be fixed on, it might become their
duty to retire from the Convention.” JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL
CONVENTION OF 1787, at 37 (W.W. Norton & Co., 1987) (1840). In 1776, three delegates to
the Maryland Convention resigned because they could not adhere to the instructions of
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the implication that other means of changing or revising constitutions, if they
are not authorized or ratified by the people, are illegitimate.
Before proceeding, a preliminary point deserves mention. This Article
focuses on the popular role in constitutional creation, revision, and
amendment, but the line between revision and amendment can be an uncertain
one. When the Thirteenth, Fourteenth, and Fifteenth Amendments were added
to the federal Constitution after the Civil War, did these amendments
fundamentally change the government and political society, so that they
should be seen as a revision of the document? Similarly, when the
Pennsylvania convention of 1967–68 proposed numerous changes, including
an entirely new judicial article, but retained substantial portions of the state’s
1874 constitution, did it in doing so propose a new constitution? There are no
easy answers to these questions. My rather mundane solution is to treat as
amendments those changes that became part of a constitution by the
amendment process prescribed by that constitution.
III. FEDERAL CONSTITUTIONAL CHANGE AND
POPULAR CONSTITUTIONALISM: THE FOUNDING PERIOD
The initial constitution created for the United States, the Articles of
Confederation, failed miserably, and its failure as a frame of government was
matched by its failure in terms of popular constitutionalism.8 That the
Continental Congress did not involve the citizenry in creating the Articles is
perhaps understandable, given the dire military situation the country faced,
although most states during the Revolutionary War did find it possible to enlist
the people in the creation of their constitutions.9 Be that as it may, the Articles
of Confederation was completed in 1777 by the Continental Congress, a body
not specially elected for constitution-making, and became the operating
constitution for the new Union even prior to formal ratification. Ratification
required the consent of all thirteen states, but in most instances the approval of
their constituents. See MARC W. KRUMAN, BETWEEN AUTHORITY AND LIBERTY: STATE
CONSTITUTION MAKING IN REVOLUTIONARY AMERICA 76–81 (1997). Limiting the agenda
of a constitutional convention, which has occurred frequently in the states, is another
means of controlling what delegates discuss and propose.
8 Peter S. Onuf, The First Federal Constitution: The Articles of Confederation, in
THE FRAMING AND RATIFICATION OF THE CONSTITUTION 82, 82 (Leonard W. Levy &
Dennis J. Mahoney eds., 1987).
9 For example, the New York legislature that drafted the state’s constitution was
almost constantly on the run from British forces—two members wryly suggested that it
might be better “‘first to endeavor to secure a State to govern, before we established a form
to govern it by’—and fear of invasion prompted the New Jersey legislature to frame and
adopt a constitution in less than two weeks.” See G. ALAN TARR, UNDERSTANDING STATE
CONSTITUTIONS 63 (1998) [hereinafter TARR, UNDERSTANDING] (quoting WILLI PAUL
ADAMS, THE FIRST AMERICAN CONSTITUTIONS: REPUBLIC IDEOLOGY AND THE MAKING OF
THE STATE CONSTITUTIONS IN THE REVOLUTIONARY ERA 85–86 (Rita Kimber & Robert
Kimber trans., Univ. of N.C. Press 1980) (1973)).
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the states’ delegates in the Congress, who were not selected for this specific
purpose, was deemed sufficient.10 Some states’ delegates were concerned that
they lacked authority and delayed signing the Articles until they had received
formal approval from their legislatures.11
Article XIII of the Articles of Confederation required that constitutional
amendments receive the unanimous approval of all thirteen state legislatures.12
This proved an insuperable barrier to reform, so no amendments to the Articles
were ever adopted.13 Yet by the time Maryland became the thirteenth state to
sign the Articles in 1781, its deficiencies were already manifest—one
commentator wryly described the Articles Congress as a mere “burlesque on
government, and a most severe satire on the wisdom and sagacity of the
people”—and efforts to correct its deficiencies had already commenced.14
These efforts foundered, however, on the requirement of state unanimity. For
example, Congress in 1781 submitted an amendment to the states to strengthen
the fiscal powers of Congress, but Rhode Island blocked the effort by rejecting
the amendment.15 This failure encouraged more radical steps. The delegates at
the irregularly called Annapolis Convention of 1786, which met to deal with
the commercial problems of the Confederation, unanimously petitioned
Congress for a convention to explore possible remedies for the full panoply of
defects of the Articles.16 Concerns about the deficiencies of state constitutions,
about violations of those constitutions by state legislatures, and about the
breakdown of order in the states, exemplified by Shay’s Rebellion, gave
further impetus to these calls for reform.17 By February, 1787, after eight
states had already appointed delegates to the Philadelphia convention,
Congress somewhat reluctantly gave its blessing to the meeting, authorizing
the convention to propose such amendments to the Articles as would render it
“adequate to the exigencies of the union.”18 In doing so, it signed the death
warrant for the Articles of Confederation.19
Despite its “total exclusion of the people in their collective capacity,”20 the
United States Constitution fares far better than the Articles in terms of popular
constitutionalism. The delegates to the Philadelphia Convention were selected
10 Onuf, supra note 8, at 82.
11 Id. at 82–83.
12 ARTICLES OF CONFEDERATION of 1781, art. XIII, para. 1.
13 Jack N. Rakove, The Road to Philadelphia, 1781–1787, in THE FRAMING AND
RATIFICATION OF THE CONSTITUTION, supra note 8, at 98, 99.
14 Onuf, supra note 8, at 83.
15 Rakove, supra note 13, at 102–03.
16 Id. at 108–10.
17 See generally CALVIN H. JOHNSON, RIGHTEOUS ANGER AT THE WICKED STATES:
THE MEANING OF THE FOUNDERS’ CONSTITUTION (2005).
18 Rakove, supra note 13, at 109. For a discussion of the political maneuverings
leading up to the Philadelphia Convention of 1787, see id. at 102–03.
19 Id. at 103–04.
20 THE FEDERALIST NO. 63, at 387 (James Madison) (Clinton Rossiter ed., 1961)
(emphasis omitted).
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for the express purpose of constitutional reform by the people’s representatives
in state legislatures.21 The document that the delegates drafted was submitted
to conventions specially elected for the purpose, giving the people in the
various states an indirect control over whether or not to ratify the Constitution;
and even after ratification by the requisite nine states, the Constitution took
effect only in those states that had ratified the document.22 The selection of
delegates for the ratifying conventions was as democratic as the voting laws in
the states allowed, which is to say quite democratic, as most states expanded
suffrage as a result of the Revolution.23 Still, the vote for delegates to the
ratifying conventions excluded women (with a limited exception in New
Jersey), slaves, and free males who failed to meet state property requirements
or other qualifications for voting.24 Some states, such as Connecticut and
Massachusetts, recognizing the fundamental character of what was at stake,
expanded the franchise to include property-less persons who were excluded
from voting for the state legislature.25 Yet even in those states that did not
expand their electorate for the occasion, those eligible to vote included more
than sixty percent of adult white males.26
More interesting are the implications of the Constitution’s creation and
ratification for popular constitutionalism. It is an oft-told tale. The delegates to
the Philadelphia Convention exceeded their congressional mandate, crafting an
entirely new constitution rather than submitting amendments to the Articles of
Confederation. They also departed from the Articles’ requirement of
unanimous ratification, requiring the approval of only nine states for the
Constitution to take effect; and they departed from the procedure specified in
the Articles, providing that conventions rather than state legislatures ratify the
changes they were proposing. Their actions raise two questions. Were the
founders justified in undertaking what Bruce Ackerman has rightly labeled a
“revolutionary redefinition of the rules of the game,” rules that had been
adopted only a few years earlier by all thirteen states?27 And if the founders
could legitimately ignore constitutionally prescribed procedures for
21 The suspicious Rhode Island legislature refused to send any delegates to the
convention. Christopher Klein, 7 Things You May Not Know About the Constitutional
Convention, HISTORY.COM (Sept. 17, 2012), http://www.history.com/news/7-things-youmay-not-know-about-the-constitutional-convention [https://perma.cc/K2HE-AZFW].
22 U.S. CONST. art. VII.
23 For a discussion of the selection of delegates for the ratifying conventions, see
generally ADAMS, supra note 9.
24 On the right of women property-owners to vote in New Jersey, see ROBERT F.
WILLIAMS, THE NEW JERSEY STATE CONSTITUTION 11, 51 (updated ed. 1997).
25 On the legal qualifications for voting in the states during the late eighteenth
century, see ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF
DEMOCRACY IN THE UNITED STATES 8–21 (2000). On the expansion of the electorate for
choosing delegates to the Connecticut and Massachusetts conventions, see PAULINE MAIER,
RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 1787–1788, at 125–54 (2010).
26 See, e.g., KEYSSAR, supra note 25; MAIER, supra note 25.
27 ACKERMAN, FOUNDATIONS, supra note 3, at 168.
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constitutional change, did their example provide a precedent for future
generations of constitutional reformers to do the same?
The Federalists, those favoring the Constitution, sought to preclude that
latter possibility, even as they defended their extraconstitutional actions.
Responding to the charge of illegality—or at least extraconstitutionality—
James Madison in The Federalist No. 43 denied the authority of the Articles to
bind the convention delegates.28 For one thing, “in many of the States [the
Articles] had received no higher sanction than a mere legislative ratification”
and thus resembled a treaty more than a constitution.29 This was important, he
maintained, because although the Articles mandated that it “shall be inviolably
observed by every state,” in fact it had frequently been breached by the parties
to this “treaty,” and under the principles of international law, breaches of a
treaty absolve the parties of their obligations under it.30 This argument seems
more clever than sound, particularly since the delegates met in Philadelphia
under the authority of the Articles Congress. Madison also argued that the
delegates had been faithful to their charge, which was to make such alterations
of the Articles of Confederation as would “render the Constitution of the
federal government adequate to the exigencies [of government and the
preservation] of the Union.”31 The charge itself, he insisted, contained a
contradiction in that there were no changes that could be made that would
render the Articles adequate to the exigencies of government, and so the
delegates reasonably chose accomplishment of the end over adherence to the
means proposed by the Articles Congress.32 Yet the very term that we use for
those who crafted the Constitution—“the Founders”—indicates our
recognition that the delegates were not merely following the mandate of the
Congress.
Madison acknowledged that the convention did depart from its instructions
in opting for ratification by nine states rather than thirteen, but he stressed that
requiring unanimous ratification “would have subjected the essential interests
of the whole to the caprice or corruption of a single member.”33 Practical
concerns also influenced other delegates at the Philadelphia Convention. They
noted that a ratifying convention was a single body, whereas ratification by
state legislatures would in most states require the approval of two bodies (both
houses of bicameral legislatures), and that the state legislatures would lose
power as a result of the new constitution and therefore would likely oppose
it.34 But ultimately, Madison appealed to the “absolute necessity of the case; to
the great principle of self-preservation; to the transcendent law of nature and
of nature’s God, which declares that the safety and happiness of the society are
28 THE FEDERALIST NO. 43, at 271 (James Madison) (Clinton Rossiter ed., 1961).
29 Id. at 279.
30 ARTICLES OF CONFEDERATION of 1781, art. XIII, para. 1.
31 THE FEDERALIST NO. 40, at 247 (James Madison) (Clinton Rossiter ed., 1961).
32 Id.
33 THE FEDERALIST NO. 43, supra note 28, at 279.
34 MADISON, supra note 7, at 70–71.
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the objects at which all political institutions aim and to which all such
institutions must be sacrificed.”35 Edmund Randolph advanced a similar
argument at the Philadelphia convention. Responding to concerns about “a
want of power”, he declared that he “was not scrupulous on the point of
power. When the salvation of the Republic was at stake, it would be treason to
our trust, not to propose what we found necessary.”36 Besides, the want of
power was not crucial because the Convention was merely offering proposals,
with the ultimate determination to be made by the people themselves. Thus,
Madison concluded that the Constitution “is to be of no more consequence
than the paper on which it is written, unless it be stamped with the approbation
of those to whom it is addressed.”37 Ultimately, then, it was the will of the
people that was determinative.
This invocation of the authority of the people connects Madison’s
arguments with Larry Kramer’s popular constitutionalism.38 Like Kramer,
Madison and his colleagues endorse constitutional change occurring outside
the parameters of what the existing government required for such change, and
they do so in the name of the people, who have the ultimate authority to
vindicate their actions.39 Like Kramer, they view this power of the people as
decisive, even though the government created by the Articles had at least some
claim to democratic legitimacy, given that the Articles were adopted by all the
states only a few years earlier.40 However, unlike Kramer, they seek to cabin
such extraconstitutional practices.41 Circumvention of constitutional forms
was justified in 1787 only by the absolute necessity of the case, because “the
salvation of the Republic was at stake.”42 But normal situations do not justify
extraordinary remedies. Of course, that leaves unanswered the questions of
who determines when an “absolute necessity” exists and on what bases.43 Thus
later commentators, like Bruce Ackerman, have pointed to the irregularities at
the Founding to justify irregularities at later stages in the nation’s
constitutional development.44
Madison’s endorsement of the extraordinary actions taken in Philadelphia
is all the more striking when one recalls his adamant opposition to a second
35 THE FEDERALIST NO. 43, supra note 28, at 279.
36 MADISON, supra note 7, at 127. Even George Mason, who ultimately became an
Anti-Federalist, concurred: “He thought with his colleague Mr. R[andolph] that there were
besides certain crisises [sic], in which all the ordinary cautions yielded to public necessity.”
Id. at 157.
37 THE FEDERALIST NO. 40, supra note 31, at 252.
38 See generally LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR
CONSTITUTIONALISM AND JUDICIAL REVIEW 962–67 (2004) [hereinafter KRAMER, THE
PEOPLE THEMSELVES].
39 See generally MADISON, supra note 7.
40 See generally id.
41 See generally id.
42 Id. at 127.
43 See generally MADISON, supra note 7.
44 ACKERMAN, FOUNDATIONS, supra note 3, at 37–44, 165–69.
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constitutional convention, proposed by opponents of the Constitution as a way
of “improving upon” the work of the Philadelphia Convention, and his more
general reluctance to refer constitutional questions to the people.45 Even
though he felt obliged to propose the Bill of Rights in the first Congress, his
tepid support for amendments during the ratification period reflected real
doubts about their utility, and his aim throughout the process was primarily to
head off amendments that might cripple the new government.46 This is
reflected in both what he took and what he did not take from the lists of
amendments submitted by the state ratifying conventions. In particular,
Madison omitted proposals that introduced structural changes or curtailed the
powers of the federal government, and he successfully opposed amending the
Constitution to limit the federal government to those powers “expressly”
conferred upon it.47
IV. CONSTITUTIONAL CHANGE UNDER ARTICLE V
Article V specifies two methods of proposing amendments to the
Constitution: proposal by a two-thirds majority in each house of Congress or
proposal by a constitutional convention, to be called by Congress upon
application by two-thirds of the state legislatures.48 In providing alternative
modes of amendment, it prevents members of Congress from blocking needed
reforms, even if those changes might affect congressional power. Article V
also authorizes two methods of ratifying amendments: approval by the
legislatures of three-quarters of the states or by specially elected conventions
in three-quarters of the states, investing Congress with the power in each
instance to choose between these two modes of ratification.49 In doing so, the
Constitution repudiates the unanimity requirement of the Articles of
Confederation, and it also allows Congress to bypass state legislatures if it is
perceived that they might, for self-interested reasons, block needed reforms.50
45 See THE FEDERALIST NOS. 49, 50 (James Madison).
46 ROBERT A. GOLDWIN, FROM PARCHMENT TO POWER: HOW JAMES MADISON USED
THE BILL OF RIGHTS TO SAVE THE CONSTITUTION (1997).
47 See generally GOLDWIN, supra note 46, at 140–53.
Madison did not believe that the
Bill of Rights restricted federal power because federal actions invading those rights would
have been ultra vires, beyond the powers conferred by the enumeration of powers.
48 U.S. CONST. art. V.
49 Id.
50 The only time that Congress has designated that specially elected conventions be
used was in the ratification of the Twenty-First Amendment, which repealed the Eighteenth
Amendment and Prohibition. DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS:
AMENDING THE U.S. CONSTITUTION, 1776–1995, at 282–87 (1996). Congress did so
because the legislatures in many states were malapportioned to favor rural interests, and it
was in rural areas that support for prohibition was strongest. Reliance on conventions
promoted popular constitutionalism because most states included on the ballot whether
delegates were pro- or anti-ratification (or some, uncommitted). See RUSSELL L. CAPLAN,
CONSTITUTIONAL BRINKSMANSHIP: AMENDING THE CONSTITUTION BY NATIONAL
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Madison describes these arrangements as striking the proper balance. “It
guards equally against that extreme facility, which would render the
Constitution too mutable; and that extreme difficulty, which might perpetuate
its discovered faults.”51 Later commentators have disputed that assessment,
finding the Article V process exceedingly difficult.52 Finally, Article V
imposes two limitations on the amendment power, prohibiting amendments
prior to 1808 that would interfere with the slave trade and guaranteeing that no
state can be deprived without its consent of its equal representation in the
Senate.53 These limitations are now of only historical interest.
Neither Article V nor any other part of the Constitution deals directly with
constitutional revision. Such replacement of the Constitution could occur
extraconstitutionally, relying on the people’s right to replace their
governments recognized in the Declaration of Independence; or it could
possibly occur through a constitutional convention called under Article V,
although that provision only authorizes “call[ing] a Convention for proposing
Amendments,” so the form of the Constitution would remain even though
amendments had transformed the system of government. Some academics
have championed fundamental reform, but despite periodic public
disenchantment with the federal government, there has never been a
significant popular movement favoring constitutional revision.54
There have been few Article V amendments as well. If one excludes the
first fifteen years under the new Constitution as a period for adding a Bill of
Rights and remedying problems that became apparent immediately after
ratification, there have been only fifteen amendments in more than two
centuries, fewer than one every fourteen years.55 Most of these amendments
CONVENTION 126 (1988). Also, during the 1932 election, eleven states had referenda on
whether to repeal the Eighteenth Amendment, all of which passed easily. As a result,
conventions on repeal did not deliberate but merely voted—the New Hampshire
convention, for example, lasted seventeen minutes. See KYVIG, supra, at 282, 286.
51 THE FEDERALIST NO. 43, supra note 28, at 278.
52 See, e.g., SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION 159–66 (2006)
[hereinafter LEVINSON, OUR UNDEMOCRATIC CONSTITUTION]. See generally Stephen M.
Griffin, Constitutionalism in the United States: From Theory to Practice, in RESPONDING
TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford
Levinson ed., 1995).
53 U.S. CONST. art. V.
54 Id. Over the last half century, the leading academic proposals for constitutional
revision have included JAMES MACGREGOR BURNS, THE DEADLOCK OF DEMOCRACY:
FOUR-PARTY POLITICS IN AMERICA (1963); LEVINSON, OUR UNDEMOCRATIC
CONSTITUTION, supra note 52; and JAMES L. SUNDQUIST, CONSTITUTIONAL REFORM AND
EFFECTIVE GOVERNMENT (rev. ed. 1992).
55 The Eleventh Amendment was adopted to overturn Chisholm v. Georgia, 2 U.S. (2
Dall.) 419 (1793), in which the U.S. Supreme Court held that the Constitution permitted
the resident of one state to sue the government of another state in federal court. The
Twelfth Amendment was adopted to remedy the problem with the Electoral College that
produced a tie vote in the election of 1800. Seminole Tribe of Fla. v. Florida, 517 U.S. 44,
69 (1996); Paul Boudreaux, The Electoral College and Its Meager Federalism, 88 MARQ.
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were adopted at key divides in the nation’s history—three during
Reconstruction, four during the Progressive Era, and four during the Great
Society Era—and so for long stretches of American history, there were no
additions to the Constitution.56 This relative infrequency contrasts sharply with
the pattern in the states—state constitutions have been amended on average
about 1.23 times per year, and amendment has been constant rather than
episodic.57 It also contrasts with the pattern in other countries. In a study of
amendment patterns in thirty countries, Donald Lutz found that the United
States had the eighth lowest rate of amendment, and the ranking would be
even lower if one eliminated the founding period from consideration.58
What accounts for this infrequency of amendment? For one thing, one of
the two modes of proposing amendments—the convention method—has faded
into obsolescence: there has not been a federal convention since 1787.59 In
part, this reflects procedural uncertainties that Madison himself recognized
during the constitutional convention: how many delegates should there be,
how should they be apportioned, and how should they be selected?60 These
questions are answerable, but Congress has chosen not to answer them,
thereby increasing the uncertainty over, and reducing the likelihood of, a
convention. In part, the disappearance of the convention option reflects fears,
real or manufactured, of what such a convention might produce, with dire
warnings about runaway conventions and the repeal of fundamental rights.
These fears are likely groundless, given the states’ success with constitutional
conventions, but they have had an effect nonetheless.61 There is considerable
irony here. The Virginia Plan proposed that a system of amendment be created
that did not involve Congress, and the convention mode was the only one
approved until late in the Philadelphia Convention.62 Not until the last week
did the delegates authorize Congress to propose amendments, responding to
L. REV. 195, 197 (2004); Mark Strasser, Chisholm, The Eleventh Amendment, and
Sovereign Immunity: On Alden’s Return to Confederation Principles, 28 FLA. ST. U. L.
REV. 605, 606, 617 (2001).
56 See generally David A. Strauss, The Irrelevance of Constitutional Amendments,
114 HARV. L. REV. 1457, 1458–90 (2001).
57 Donald S. Lutz, Patterns in the Amending of American State Constitutions, in
CONSTITUTIONAL POLITICS IN THE STATES: CONTEMPORARY CONTROVERSIES AND
HISTORICAL PATTERNS 24, 34–35 (G. Alan Tarr ed., 1996) [hereinafter Lutz, Patterns].
58 Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO
IMPERFECTION, supra note 52, at 237, 261 tbl.11 [hereinafter Lutz, Toward a Theory].
59 Michael A. Almond, Comment, Amendment by Convention: Our Next
Constitutional Crisis?, 53 N.C. L. REV. 491, 493 (1975).
60 MADISON, supra note 7, at 37–38.
61 Illustrative of the panicked reaction to the possibility of a constitutional convention
is CAPLAN, supra note 50. For a valuable corrective, see generally PAUL J. WEBER &
BARBARA A. PERRY, UNFOUNDED FEARS: MYTHS AND REALITIES OF A CONSTITUTIONAL
CONVENTION (1989).
62 Almond, supra note 59, at 497 n.26.
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Alexander Hamilton’s contention that those in government would be better
able to detect defects in the Constitution.63
Another reason for the infrequency of federal constitutional amendments
is the difficulty of the remaining mode of amendment: Lutz’s study concluded
that it was the second most difficult amendment process in the thirty countries
he studied.64 The difficulty lies less with the super-majority of state
legislatures or conventions required for ratification than with the requirement
of two-thirds majorities in both houses of Congress.65 The states have failed to
ratify only six amendments sent to them by Congress, but Congress has
proposed only thirty-three amendments in 225 years.66 This might be viewed
as vindicating the concern expressed in the Philadelphia Convention that
Congress could too often frustrate the popular desire for amendments. There
have been proposals periodically to amend Article V to facilitate constitutional
amendment, but these efforts have attracted little support and enjoyed no
success.67
A final reason for the infrequency of amendment is the aura that surrounds
the Constitution and those who created it. Madison argued in The Federalist
No. 49 that “frequent appeals [to the people] would, in great measure, deprive
the government of that veneration which time bestows on everything, and
without which perhaps the wisest and freest governments would not possess
the requisite stability.”68 Yet his argument may have succeeded all too well,
insofar as later majorities have been intimidated from seeking to improve upon
what they have inherited. This is important because an absence of formal
amendment is not necessarily the same as an absence of constitutional change.
It may be that constitutional change is occurring but that the change is through
other mechanisms in which the people have less of a role, such as through
judicial rulings or legislative or executive actions. The choice may not be
between constitutional change and an unchanged Constitution but rather
between constitutional change consistent with popular constitutionalism and
constitutional change inconsistent with it.
V. POPULAR CONSTITUTIONALISM AND ARTICLE V
The stringent requirements of Article V promote popular constitutionalism
insofar as they ensure that all constitutional amendments enjoy broad popular
63 KYVIG, supra note 50, at ch. 3.
64 Lutz, Toward a Theory, supra note 58, at 260.
65 U.S. CONST. art. V.
66 The amendments rejected in the states include the Congressional Apportionment
Amendment, Titles of Nobility Amendment, Corwin Amendment, Child Labor
Amendment, the Equal Rights Amendment, and the District of Columbia Statehood
Amendment. See generally KYVIG, supra note 50.
67 JOHN R. VILE, ENCYCLOPEDIA OF CONSTITUTIONAL AMENDMENTS, PROPOSED
AMENDMENTS, AND AMENDING ISSUES, 1789–1995, at 9–11 (1996).
68 THE FEDERALIST NO. 49, at 314 (James Madison) (Clinton Rossiter ed., 1961).
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support. This is reflected in the history of their adoption. The Bill of Rights
was adopted because of widespread popular concern about the absence of
rights guarantees in the proposed Constitution—indeed, the Constitution likely
would have been defeated had the Federalists not promised to introduce
amendments after its adoption.69 The Reconstruction Amendments emerged
out of a savage war fought to secure “a new birth of freedom.”70 Some
amendments originated in mass popular movements—for example, the
Eighteenth Amendment (imposing Prohibition) and the Nineteenth
Amendment (securing woman suffrage).71 Others reflected either a broad
bipartisan reform consensus—for example, the Sixteenth Amendment
(authorizing an income tax) and the Seventeenth Amendment (instituting
popular election of senators)—or the views of a dominant political coalition—
for example, the Twenty-second Amendment (limiting presidents to two
terms).72 Still others, while not originating in popular movements, nonetheless
enjoyed broad support and were ratified within a year of their submission to
state legislatures. These included the Eleventh Amendment (reversing a
Supreme Court ruling that allowed citizens of one state to sue another state),
the Twelfth Amendment (reforming the operation of the Electoral College),
the Twenty-third Amendment (permitting residents of the District of Columbia
to vote for presidential electors), and the Twenty-sixth Amendment (extending
the right to vote to eighteen-year-olds).73
Yet many significant constitutional changes have occurred outside Article
V procedures. Any list of the most significant constitutional changes since the
adoption of the Bill of Rights would include the expansion of presidential
power, the expansion of national power more generally, the rise of the
administrative state, the elimination of slavery, and invalidation of the system
of racial subordination that it engendered. Of these changes, only the
elimination of slavery occurred primarily through formal constitutional
amendment, and even then it followed the Emancipation Proclamation and a
bloody Civil War. Constitutional amendments have largely dealt with other
issues. Since 1792, five have nationalized and expanded the franchise, four
have dealt with the perennial issue of presidential selection and succession,
five have served to overturn Supreme Court rulings, and two have involved a
failed experiment with Prohibition.74 So although all federal constitutional
69 See, e.g., GOLDWIN, supra note 46, at 140–53.
70 President Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863), in
ABRAHAM LINCOLN: HIS SPEECHES AND WRITINGS 734 (Roy P. Basler ed., 1969).
71 See ALAN P. GRIMES, DEMOCRACY AND THE AMENDMENTS TO THE CONSTITUTION
(1978).
72 See id. at 66–81, 113–24.
73 See id. at 18–30, 126–29, 141–46. On the politics surrounding the constitutional
amendments, see generally id.; KYVIG, supra note 50.
74 The Fifteenth, Nineteenth, Twenty-Third, Twenty-Fourth, and Twenty-Sixth
amendments have expanded the franchise. The Twelfth, Twentieth, Twenty-Second, and
Twenty-Fifth have addressed presidential election and succession. See U.S. CONST. amend.
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amendments have involved popular constitutionalism, this does not mean that
all major constitutional changes have.
VI. FEDERAL CONSTITUTIONAL CHANGE OUTSIDE OF ARTICLE V?
A. Akhil Amar
In recent decades, two well-known scholars, Akhil Amar and Bruce
Ackerman, have argued that the opportunities for popular constitutionalism
under the federal Constitution are broader than they may initially appear,
because Article V does not exhaust the means by which the people can amend
the federal Constitution. For Amar, Article V elaborates the mechanisms by
which those in government may amend the Constitution, but it “neither limits
nor empowers the People themselves.”75 The people had the right to form,
alter, or abolish governments prior to the adoption of the Constitution, and
they did not forfeit this right when the Constitution was ratified.76 What does
this non-exclusivity of Article V mean in practice? According to Amar, the
people can call conventions without following Article V procedures, and
through these conventions they can transition to a new constitution and
government or can introduce changes in the existing constitution and
government.77 In addition, they can, by majority vote in a referendum, approve
or reject proposed amendments, thus circumventing both the modes of
ratification specified in Article V and its federalism and extraordinarymajority requirements.78 In doing so, Amar insists, the people would merely
be emulating the example of the founders, who channeled “the theretofore
supra-legal right of revolution into precise and peaceful legal procedures.”79
As a statement of the right of the people outside the Constitution, Amar’s
claim is unexceptionable: the Declaration of Independence recognizes that the
XI–XXVI. The Eleventh, Fourteenth, Sixteenth, Twenty-Fourth, and Twenty-Sixth
amendments all overturned Supreme Court decisions. See Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 70–71 (1996) (stating that the Eleventh Amendment overturned
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)); Harper v. Va. Bd. of Elections, 383
U.S. 663, 664–66 (1966) (stating that the Fourteenth Amendment overturned Breedlove v.
Suttles, 302 U.S. 277 (1937)); Eisner v. Macomber, 252 U.S. 189, 205–06 (1920) (stating
that the Sixteenth Amendment overturned Pollock v. Farmers’ Loan & Tr. Co., 158 U.S.
601 (1895)). The Eighteenth and Twenty-First amendments deal with Prohibition. U.S.
CONST. amend. XVIII, repealed by U.S. CONST. amend. XXI.
75 Akhil Reed Amar advances his theory in Philadelphia Revisited: Amending the
Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1055 (1988) [hereinafter Amar,
Philadelphia Revisited], and The Consent of the Governed: Constitutional Amendment
Outside Article V, 94 COLUM. L. REV. 457 (1994).
76 Amar, Philadelphia Revisited, supra note 75, at 1053.
77 Id. at 1045–60.
78 Id.
79 Id. (emphasis added).
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people’s right to form and alter governments is inalienable.80 But Amar’s
claim is that the right of the people to institute constitutional change outside
Article V is not extraconstitutional but rather consistent with the
Constitution.81 Underlying his position is a belief that fundamentally the
Constitution is predicated on popular sovereignty.82 Whereas the extraordinary
majorities required by Article V may serve as a check on the people’s
representatives, who may be ignorant of or disdainful of the popular will, they
are not required when the people act directly.83 Thus, ratification by a national
majority in a referendum poses no problems in terms of federalism, because
the aim of the Constitution was that “the cool and deliberate sense of the
community” should prevail, rather than that sense be subordinated to claims of
state sovereignty.84 In support, Amar points to the influential Virginia
Declaration of Rights, where the declaration of the right of the people to alter
or abolish their governments was followed by a provision locating that right in
“a majority of the community.”85 Similarly, Amar contends that popular
conventions called outside Article V are not problematic because they are
consistent with other provisions of the Constitution.86 These include the
Preamble, which recognizes the right of the people to form or abolish a
constitution; the First Amendment, which arguably contemplated such
conventions when it guaranteed “the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances”; and the Ninth and
Tenth Amendments, which recognize “the people” do “retain” and “reserve”
their “right” and “power” to exercise their popular sovereignty.87
Amar’s effort to expand the opportunities for popular constitutionalism
under the Constitution ultimately fails.88 The people may not have given up
their extraconstitutional right to alter or abolish their government—the right to
80 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (“[G]overnments are
instituted among men, deriving their just powers from the consent of the governed [and]
whenever any form of government becomes destructive of these ends, it is the right of the
people to alter or to abolish it, and to institute a new government . . . .”).
81 See Amar, Philadelphia Revisited, supra note 75, at 1054.
82 Id. at 1060.
83 Id. at 1040.
84 THE FEDERALIST NO. 63, supra note 20, at 384. In making this claim, Amar can
also point to The Federalist No. 45 in which Madison excoriates those who would prefer
the sovereignty of the states over the “happiness of the people of America,” noting that “as
far as the sovereignty of the States cannot be reconciled to the happiness of the people, the
voice of every good citizen must be, Let the former be sacrificed to the latter.” THE
FEDERALIST NO. 45, at 288–89 (James Madison) (Clinton Rossiter ed., 1961).
85 Amar, Philadelphia Revisited, supra note 75, at 1051 (quoting Virginia Declaration
of Rights art. 3).
86 Id. at 1056–58.
87 Id.; U.S. CONST. pmbl., amends. I, IX, X.
88 This paragraph relies primarily on David R. Dow, When Words Mean What We
Believe They Say: The Case of Article V, 76 IOWA L. REV. 1–66 (1990); and chapter 6 of
JOHN R. VILE, CONTEMPORARY QUESTIONS SURROUNDING THE CONSTITUTIONAL
AMENDING PROCESS 97 (1993) [hereinafter VILE, CONTEMPORARY QUESTIONS].
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revolution is inalienable—but in undertaking such change under the
Constitution, they are bound by the Constitution they ratified. On its face, the
language of Article V is exclusive and conclusive, whereas the provisions that
Amar gathers in support of his thesis are very broad and do not speak directly
about the amendment process.89 Furthermore, in the debates at the
Philadelphia Convention and in the state ratifying conventions, there is no
evidence that Article V was not viewed as setting out the exclusive means of
amending the Constitution. The same holds true of The Federalist. Indeed,
James Madison seems to anticipate and reject Amar’s argument, noting that
“the supreme and ultimate authority would reside in the majority of the people
of the Union,” as Amar suggests, if the mode of amendment were simply
national in character; but he then describes the amendment process as “neither
wholly national nor wholly federal.”90 As George Washington put it in his
Farewell Address in 1796: Although “the right of the people to make and alter
their constitutions of government” is undoubted, constitutions were “sacredly
obligatory” until changed “by an explicit and authentic act of the whole
people” occurring through established channels for change.91 Until then, “[t]he
very idea of the power and the right of the people to establish government
presupposes the duty of every individual to obey the established
government.”92 In the face of such evidence, it is difficult for a textualist or an
originalist to expand the opportunities for popular constitutionalism beyond
what Article V provides.
B. Bruce Ackerman
This does not pose a problem for Bruce Ackerman, who is neither a
textualist nor an originalist.93 Article V may provide the mechanisms by which
constitutional changes are usually adopted, but not all constitutional change
has taken that form. In particular, Ackerman identifies three episodes94 in
American history when major constitutional transformations occurred without
constitutional formalities being observed. These include: (1) the Founding
itself, when the Philadelphia Convention exceeded its mandate and
restructured ratification procedures in order to revise the existing constitution;
89 See Amar, Philadelphia Revisited, supra note 75, at 1056–58.
90 THE FEDERALIST NO. 39, at 246 (James Madison) (Clinton Rossiter ed., 1961).
91 President George Washington, Farewell Address (1796), http://avalon.law.yale.edu/
18th_century/washing.asp [https://perma.cc/PL2N-FCDJ].
92 Id.
93 Ackerman outlines his theory in WE THE PEOPLE: FOUNDATIONS, supra note 3, and
elaborates its historical underpinnings in BRUCE ACKERMAN, 2 WE THE PEOPLE:
TRANSFORMATIONS (1998).
94 Ackerman’s identification and discussion of these three transformations can be
found in WE THE PEOPLE: FOUNDATIONS, supra note 3, at ch. 3. He later identifies a fourth
transformation in BRUCE ACKERMAN, 3 WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION
(2014) (describing the civil rights movement and other events culminating in the Supreme
Court’s seminal decision in Brown v. Board of Education, 347 U.S. 483 (1954)).
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(2) Reconstruction, when the Republican Congress after the election of 1866
forced the Southern states to ratify the far-reaching Fourteenth Amendment as
a condition for reclaiming their equal status in the Union; and (3) the New
Deal era, when the landslide reelection of Franklin Roosevelt in 1936 and his
threat to pack the Supreme Court prompted the Justices to cease their
opposition to the President’s economic initiatives, and a series of appointments
to the Court confirmed and solidified the new understanding of federal
power.95 Ackerman’s narrative thus diverges from most historical accounts,96
which grudgingly acknowledge the Founders’ irregularities but maintain that
the Reconstruction Congress followed Article V in introducing its
constitutional changes and that the New Deal conflict was resolved not by
constitutional change but by the Supreme Court returning to the more
generous—and, for most commentators, more appropriate—understanding of
federal power pioneered by Chief Justice John Marshall. For Ackerman, the
standard account unduly minimizes the discontinuities in the nation’s
constitutional history, ignoring that “both Reconstruction Republicans and
New Deal Democrats [were] engaging in self-conscious acts of constitutional
creation that rivaled the Founding Federalists’ in their scope and depth.”97 In
addition, it downplays the distinctive role played by the people in authorizing
and approving these constitutional revisions.98 In both instances the new
constitutional regimes that emerged were the product of
interbranch struggle and popular mobilization [that] made the elections of
1866 and 1936 decisive events in constitutional history. On both occasions,
the reformers returned to Washington with a clear victory at the polls. They
proceeded to proclaim that the election results gave them a “mandate from
the People,” and that the time had come for the conservative branches to end
their constitutional resistance.99
Thus the alternative mode of constitutional amendment that Ackerman
describes involves presentation of a clear constitutional choice by either
Congress (as in 1866) or the President (as in 1936), intense popular
mobilization over the issue in a political campaign, and a clear verdict from
the people in a national election.100
Ackerman’s revisionist account is not merely an attempt to correct the
historical record. Rather, he views the actions of the Founders as establishing a
precedent for “irregular” modes of constitutional change, legitimating the
95 ACKERMAN, FOUNDATIONS, supra note 3, at ch. 3.
96 See, e.g., EDWARD S. CORWIN, THE COMMERCE POWER VERSUS STATES RIGHTS
(1936); SOTIRIOS A. BARBER, THE FALLACIES OF STATES’ RIGHTS (2013).
97 ACKERMAN, FOUNDATIONS, supra note 3, at 44. He disparages the claim that the
New Deal Court merely returned to the Marshall Court’s jurisprudence as “the New Deal
myth of rediscovery.” Id. at 63.
98 Id. at 48.
99 Id.
100 Id. at ch. 10.
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creation of new constitutional regimes during Reconstruction and during the
1930s and, presumably, at future points as well.101 For if the needs of the
nation could justify ignoring constitutionally prescribed forms in 1787, they
could likewise justify an evasion of Article V requirements or their state
equivalents at later points in time. Madison, in The Federalist No. 49, cautions
against multiplying appeals to the people, asserting that the conditions that
promote successful constitution-making occur only infrequently.102 When
such appeals take place, as he states in another paper, no change can occur
“[u]ntil the people have, by some solemn and authoritative act, annulled or
changed the established form.”103 Nonetheless, “a constitutional road to the
decision of the people ought to be marked out and kept open, for certain great
and extraordinary occasions.”104 Ackerman asserts that on those occasions the
people need not adhere to the “constitutional road” established by the
fundamental law but may engage in higher law-making through other
means.105
In advancing this argument, Ackerman is at pains to distinguish between
higher law-making and ordinary law-making and to insist that the gravity and
consequences of higher law-making demand public-spirited deliberation.106
He asserts that the modern system of constitutional change, pioneered in the
New Deal crisis, meets that standard.107 Under this system the President
claims a mandate based on his electoral success, Congress under the
President’s leadership enacts transformative statutes that challenge the
fundamentals of the existing constitutional regime, the Supreme Court
invalidates those challenges to the constitutional order, and the issue of
constitutional regime change is taken to the people in a critical election, where
the mobilized people render their verdict at the polls.108 The public support for
such regime change, Ackerman argues, must be deep, broad, and decisive; if it
is, then the constitutional change that results is as legitimate as any changes
pursued through Article V.109
Historians and legal scholars have quarreled about whether the conditions
Ackerman sets out were met in the election of 1936—David Dow, for
example, dismisses “Ackerman’s theory [as] an example of bad history being
101 As Ackerman notes, “[s]urely the American People have not yet pronounced the
last word on their constitutional identity?” Id. at 23. Ackerman defines a “constitutional
regime” as “the matrix of institutional relationships and fundamental values that are usually
taken as the constitutional baseline in normal political life.” Id. at 59.
102 THE FEDERALIST NO. 49, supra note 68, at 314–15.
103 THE FEDERALIST NO. 78, at 470 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
104 THE FEDERALIST NO. 49, supra note 68, at 314.
105 ACKERMAN, FOUNDATIONS, supra note 3, at ch. 10.
106 Id.
107 Id. at 268.
108 Id.
109 Id. at ch. 10.
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used for questionable reasons”—and I shall not resolve that conflict here.110
Let me instead highlight three aspects of Ackerman’s argument. First, the
mode of constitutional change that Ackerman endorses differs dramatically
from that outlined in Article V. Both the President and the Supreme Court play
a role in Ackerman’s amendment process—indeed, the President may take the
lead in defining constitutional issues and mobilizing public support—whereas
they have no official role under Article V.111 The emphasis on federalism
under Article V is replaced by an appeal to a national political majority under
Ackerman’s version; the people play a direct role in constitutional change, as
the critical election is seen as a referendum to decide between two
constitutional visions, whereas the people play no direct role under Article
V.112 Second, one can view Ackerman’s as a more popular version of
constitutional change, enhancing opportunities for popular constitutionalism,
yet it is easy to overstate how fundamental a change Ackerman is
contemplating. He acknowledges that most constitutional change is not
transformative and will continue to occur through the mechanisms established
by Article V.113 He cites as an example the Twenty-sixth Amendment, which
extended the right to vote to eighteen-year-olds, portraying it as a super-statute
that had a narrow function and neither mobilized the public nor served as a
prelude to further constitutional developments.114 Yet if the occasions for
transformative constitutional change are rare, arising only two or three times
since the Founding, then the opportunities for popular constitutionalism at the
federal level remain circumscribed at best, even if one accepts Ackerman’s
argument. Finally, one can accept Ackerman’s historical account of past
departures from constitutional requirements without endorsing his claim that
these justify future departures. What held for popular constitutionalism
likewise holds for Ackerman as well: historical practice does not confer
constitutional legitimacy.115
VII. STATE CONSTITUTIONAL CHANGE AND POPULAR
CONSTITUTIONALISM
If the opportunities for popular constitutionalism in constitutional creation
and re-creation are limited at the federal level, they are abundant in the states;
110 David R. Dow, The Plain Meaning of Article V, in RESPONDING TO IMPERFECTION,
supra note 52, at 117, 135.
111 ACKERMAN, FOUNDATIONS, supra note 3, at ch. 10.
112 Id. at 32–33.
113 Id. at 6–7.
114 Id. at 91.
115 For a more detailed critique of Ackerman’s argument, see VILE, CONTEMPORARY
QUESTIONS, supra note 88, at ch. 5.
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and the people in the various states have taken full advantage of them.116 The
people play a direct role in the creation of their state constitutions, in almost
all instances electing the convention delegates that draft the constitutions and
ratifying or rejecting their work via popular referendum.117 The people in the
states have also proved willing to engage in constitutional revision, having
adopted 145 state constitutions, usually employing the same processes for
revision as for the creation of their initial constitutions, and they have
considered but rejected many more constitutions.118 More than one-third of
state constitutions today date from the twentieth century.119 Finally, the people
have devised multiple modes of amendment to facilitate the proposal of
constitutional changes, and in forty-nine states (Delaware being the lone
exception) they have provided for ratification by popular referendum.120 They
have made extensive use of these processes of amendment, with more than
10,000 amendments proposed to current state constitutions and more than
6,500 adopted, an average of more than 120 amendments per state.121 The
people in some states have been particularly active: for example, the 1901
Alabama Constitution now has more than 580 amendments, and the 1982
Georgia Constitution was amended during its first decade more times than the
Federal Constitution has been during its entire history.122 From a different
angle, the constitutional amendment rate per state is about 1.25 amendments
per year, whereas the federal constitutional amendment rate is .13.123 Thus, if
there is a complaint at the state level, it is not the difficulty but the ease of
amendment.
116 See Table 1.1: General Information on State Constitutions, in BOOK OF THE STATES
2013, at 12 (2013), http://knowledgecenter.csg.org/kc/system/files/1.1_2013_0.pdf [https://
perma.cc/G5AB-WM9V] [hereinafter BOOK OF THE STATES 2013, Table 1.1].
117 Table 1.2: Constitutional Amendment Procedure: By the Legislature, in BOOK OF
THE STATES 2013, supra note 116, at 14, http://knowledgecenter.csg.org/kc/system/
files/1.2_2013.pdf [https://perma.cc/2NNS-GA94] [hereinafter BOOK OF THE STATES 2013,
Table 1.2].
118 BOOK OF THE STATES 2013, Table 1.1, supra note 116
119 Id.
120 BOOK OF THE STATES 2013, Table 1.2, supra note 117; see also DEL. CONST. art.
XVI, § 1.
121 TARR, UNDERSTANDING, supra note 9, at 24. These figures actually underestimate
the number of state constitutional amendments, because earlier state constitutions were also
heavily amended. See id. “For example, in 1980, three years before adopting a new
constitution, Georgia submitted to its voters 137 proposed amendments—16 general
amendments and 121 local amendments; and Louisiana’s constitution of 1921 was
amended 536 times before its replacement in 1974.” Id.
122 Id. at 6, 24.
123 Lutz, Toward a Theory, supra note 58, at 261 tbl.11.
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VIII. STATE CONSTITUTIONAL CREATION AND POPULAR
CONSTITUTIONALISM
The states have developed a thoroughly popular process for constitutional
creation and constitutional revision.124 Typically the people vote on whether to
hold a constitutional convention, they elect the delegates to that convention,
and they vote on whether to ratify the convention’s handiwork.125 This process
did not exist in the late eighteenth century, when the people in the states were
devising their initial constitutions.126 Rather, it is the product of considered
political choice and itself represents an important expression of popular
constitutionalism whereby the people deliberately chose the procedure by
which they would create and re-create their constitutions. Aside from the
adoption of constitutions in the original thirteen states, the creation of state
constitutions has generally been tied to the process of admission to the Union,
with the drafting of constitutions and their submission to Congress being one
of the steps in gaining admission.127 The hope of admission has influenced the
deliberations and choices of the convention delegates.128 Article IV, Section 3
of the U.S. Constitution, in “empowering Congress to admit new states to the
Union, in effect, [gave] it the power to establish the conditions under which
[states would] be admitted.”129 In the enabling acts by which it authorized
prospective states to write constitutions and apply for statehood, Congress has
imposed conditions on the substance of state constitutions, and state
constitution-makers have had to meet those conditions in order to secure a
favorable vote on admission.130 If the proposed constitution contained
provisions of which Congress or the President disapproved, either branch
could refuse to approve the legislation admitting the state until the offending
provisions were removed or altered.131 For example, after Arizona proposed a
constitution that included the recall of judges, President William Howard Taft
vetoed the statehood bill, forcing Arizona to delete the provision; however,
124 Although it is useful to separate the creation of state constitutions from their
revision, there is some overlap, and this is reflected in the discussion in this section. See
infra Part XII.
125 See WALTER F. DODD, THE REVISION AND AMENDMENT OF STATE CONSTITUTIONS
21–25 (1910). When states revise their constitutions, the people may also determine in
their authorization of the convention how comprehensive the revision is by taking certain
subjects off the table or by requiring that they address certain issues, although they cannot
dictate how the delegates shall resolve those issues. See infra Part XI.
126 DODD, supra note 125, at 21–25.
127 See TARR, UNDERSTANDING, supra note 9, at 39–41.
128 See id.
129 Id.
130 For a discussion on the requirements imposed as conditions for admission, see Eric
Biber, The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on
States Entering the Union, 46 AM. J. LEGAL HIST. 119, 120–29 (2004).
131 Id.
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once admitted, Arizona immediately amended its constitution to reinstate
recall of judges.132
IX. THE POPULAR ROLE IN AUTHORIZING THE WRITING OF
CONSTITUTIONS
The people in the states began creating constitutions in 1776, with New
Hampshire, South Carolina, and New Jersey drafting theirs even prior to
independence.133 Given the novelty of the task and the pressures under which
the states were operating, it is not surprising that procedures varied from state
to state.134 However, a consensus quickly developed that the state legislature
lacked the authority to create a constitution.135 In the words of a delegate to
the Pennsylvania convention of 1776: “[L]egislative bodies of men have no
more the power of suppressing the authority they sit by, than they have of
creating it, otherwise every legislative body would have the power of
suppressing a constitution at will.”136 In addition, there was concern that
legislators might have “entrenched interests potentially subversive of the
public good,” so a temporary body elected by the people, which would not
benefit from what they wrote, was preferable.137 Early on, the states sought
popular authorization by informing voters that they were choosing legislators
who would likely vote on independence and, if called upon, would create a
constitution.138 As the New Hampshire Constitution of 1776 noted in its
preamble, those who framed it were “appointed by the free suffrages of the
people . . . and authorized . . . to establish some form of government.”139 The
Council of Safety in North Carolina resolved
that it be recommended to the good people of this now Independent State of
North Carolina to pay the greatest attention to the Election to be held on the
fifteenth of October next . . . [as] it will be the business of the Delegates then
132 TARR, UNDERSTANDING, supra note 9, at 41.
133 Id. at 61.
134 See id. at 60–67.
135 Historians disagree about whether any of the bodies that drafted the initial state
constitutions were ordinary legislatures. Compare KRUMAN, supra note 7, at ch. 2, with
DODD, supra note 125, at 38–39, and GORDON S. WOOD, THE CREATION OF THE AMERICAN
REPUBLIC 1776–1787, at 307 (1969). Whatever the case may be, the states almost
immediately moved away from legislative drafting of constitutions.
136 KYVIG, supra note 50, at 24.
137 KRUMAN, supra note 7, at 158.
138 See generally id.
139 N.H. CONST. pmbl. (1776).
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chosen not only to make Laws for the good Government of, but also to form a
Constitution for this State.140
The people in some states also sought to instruct their representatives as to
what the constitution should contain, asserting that legislators should act as the
agents of the people rather than acting according to discretion once given
authority by the people.141 When constituents in Maryland prepared
instructions for their representatives, some representatives requested a meeting
and, when they were unable to persuade their constituents to withdraw the
instructions, those representatives resigned.142 In 1776, the Pennsylvania
legislature pioneered an alternative approach, ordering copies of the proposed
constitution be printed and distributed, while suspending legislative
consideration of the constitution for eleven days so that the people had the
opportunity to voice their views.143 Objections were raised to the short period
for public debate, and these had an effect.144 When Pennsylvania revised its
constitution in 1790, the convention adjourned from February to August to
allow public consideration of its work prior to final adoption.145
The means eventually chosen to enlist the people in constitutional creation
was the constitutional convention, a body popularly elected for the sole
purpose of drafting a constitution or proposing constitutional amendments.
The convention was, as Gordon Wood has observed, “a totally new
contribution to politics” that “institutionalized and legitimized revolution.”146
By virtue of their special election, convention delegates were clothed with
popular authority to undertake a specific task, and Pennsylvania even
temporarily relaxed suffrage requirements so that the whole people could
participate in this act of authorization.147 Since 1776 the states have held 233
constitutional conventions, and even if a state constitution lacked provisions
for constitutional amendment or revision, the state legislature was assumed to
have the power to call conventions.148 On occasion there have been
140 DODD, supra note 125, at 13. For a similar approach in other states, see CHRISTIAN
G. FRITZ, AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA’S CONSTITUTIONAL
TRADITION BEFORE THE CIVIL WAR 34 (2008).
141 KRUMAN, supra note 7, at 78–79.
142 Id. Four of the seven initial state constitutions that had declarations of rights
included the right to instruct representatives.
143 DODD, supra note 125, at 15–16.
144 Id. at 16.
145 Id. at 63.
146 WOOD, supra note 135, at 613–14.
147 KRUMAN, supra note 7, at 26.
148 For discussion of the creation of the earliest state constitutions, see ADAMS, supra
note 9, ch. 3; KRUMAN, supra note 7, at ch. 2. For a comprehensive treatment of
conventions and their legal status, see JOHN A. JAMESON, A TREATISE ON CONSTITUTIONAL
CONVENTIONS; THEIR HISTORY, POWERS, AND MODES OF PROCEEDING (4th ed. 1887). The
frequency of conventions has differed widely from state to state. See JOHN J. DINAN, THE
AMERICAN STATE CONSTITUTIONAL TRADITION 7–11 (2006) [hereinafter DINAN, STATE
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irregularities. Voters approved conventions in New Hampshire in 1861 and
1864, in Iowa in 1920, and in Maryland in 1950, but none were held; New
York approved a convention in 1886 but delayed convening it until 1894.149
The people in several prospective states also called conventions and wrote
constitutions without congressional authorization—a form of state popular
constitutionalism that anticipates Akhil Amar’s argument about the nonexclusivity of Article V.150 However, when these extralegal conventions wrote
state constitutions, it was understood that popular ratification and subsequent
congressional approval rendered the defects of the process harmless.151
Finally, on occasion state legislatures have declared themselves constitutional
conventions and proposed constitutions for popular ratification. This occurred
twice in the twentieth century, in Texas in 1974152 and in Louisiana in
1992.153 In the former case the people authorized the legislature to act as a
convention,154 but in the latter case Louisiana short-circuited both of the
popular controls over constitution-making: the choice as to whether or not to
call a convention and the popular selection of delegates for that purpose.155 In
both Texas and Louisiana the people decisively rejected the proposed
constitutions, and in Louisiana the governor apologized publicly for the
circumvention of established procedures.156
X. THE POPULAR ROLE IN APPROVING CONSTITUTIONS
Many of the initial state constitutions were adopted without any thought of
popular ratification, perhaps because of the novelty of the endeavor: after all,
the creation of constitutions resembled the enactment of statutes, a process that
did not require popular approval after the fact. However, some states did seek
CONSTITUTIONAL TRADITION]. New Hampshire has called the most with seventeen, four
states have had more than ten, and twenty-two states have had five or more, including ten
of the original thirteen states and all eleven states of the Confederacy. Id. But ten states
have had only a single convention. Id.
149 CAPLAN, supra note 50, at 115.
150 For a discussion of these unauthorized conventions and their legal status, see
JAMESON, supra note 148, at ch. 4.
151 Id.
152 For a description and history of the Texas proposal in 1974–1975, see Mary Lucia
Barras & Houston Daniel, Constitutional Convention of 1974, TEX. ST. HIST. ASS’N (June
12, 2010), https://www.tshaonline.org/handbook/online/articles/mjc07 [https://perma.cc/
JC6D-S8R9].
153 For an accounting of the Louisiana public’s rejection of the proposed constitution,
see Janice C. May, State Constitutional Reforms: Recent Experiences, MADISON REV.,
Fall 1997, at 12, 16, http://heartland.org/sites/all/modules/custom/heartland_migration/
files/pdfs/5135.pdf [https://perma.cc/66VT-9UDY].
154 Barras & Daniel, supra note 152.
155 May, supra note 153, at 16.
156 For a description and history of the Texas proposal in 1974–1975, see Barras &
Daniel, supra note 152. For an accounting of the Louisiana public’s rejection of the
proposed constitution, see May, supra note 153, at 16.
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POPULAR CONSTITUTIONALISM
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to ensure popular input into constitutional deliberations through the instruction
of delegates or by circulating the drafts of constitutions for popular comment
before they were finalized.157 Georgia even provided for successive
conventions to frame and revise its 1789 constitution, with a third convention
elected to ratify it.158 In 1778 Massachusetts became the first state to seek
popular ratification of a constitution, as the Massachusetts General Court
(legislature) sent its proposed constitution to town meetings throughout the
state.159 The people, however, rejected the document by a 9,972 to 2,083
vote.160 In the wake of that decisive verdict, the General Court asked the town
meetings whether they wanted the legislature or a specially elected convention
to draw up the constitution, and when the town meetings chose the latter, a
convention was called.161 Its handiwork was submitted to the town meetings in
1780, and this time a constitution was adopted.162
Even after Massachusetts pioneered popular ratification and New
Hampshire emulated its example, the practice was slow to take hold. Most
states outside New England did not have town meetings, and this complicated
the task of consulting the people, although New Hampshire showed it was not
impossible by submitting its 1792 constitution to a direct vote of the people.163
Nonetheless, progress was slow and uneven: only one of the seven
constitutions establishing new states in the Northwest Territory between 1801
and 1830 was ratified by the people.164 During the 1830s, seven of ten
conventions submitted their work for popular approval, and from 1840–1860
all conventions did so.165 But most of the southern states that seceded did not
submit their new constitutions for popular ratification, nor did six of the eleven
southern states revising their constitutions after the conclusion of the Civil
War.166 At the turn of the twentieth century, most southern states that were
seeking to disenfranchise African-Americans and poor whites refused to
submit their revised constitutions for ratification, presumably because they
might be defeated.167 Indeed, Mississippi and South Carolina even failed to
submit the convention call to popular approval, fearing that voters might block
their disenfranchisement.168 These departures from the requirements of
157 See discussion supra Part IX.
158 DODD, supra note 125, at 42.
159 RONALD M. PETERS, JR., THE MASSACHUSETTS CONSTITUTION OF 1780: A SOCIAL
COMPACT 13 (1978).
160 These figures derive from id. at 19.
161 Id. at 20.
162 Id. at 21. It may be coincidence, but the Massachusetts Constitution, the first
constitution ratified by the people, is also the oldest operating constitution in the world. Id.
at 13.
163 See DODD, supra note 125, at 62–63.
164 Id. at 62–66.
165 Id. at 64–65.
166 Id. at 66.
167 DINAN, STATE CONSTITUTIONAL TRADITION, supra note 148, at 21–22.
168 Id. at 17–18.
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popular constitutionalism underscore the importance of ratification for
maintaining democratic rule. Altogether, of the 119 constitutions adopted
between 1776 and 1900, forty-five of them (38%) took effect without popular
ratification.169 It was only in the twentieth century that popular ratification
became a standard feature of state constitutional creation and revision.170
XI. POPULAR CONSTITUTIONALISM AND STATE CONSTITUTIONAL DESIGN
Almost two centuries separate when New Hampshire created the first state
constitution to when the fiftieth state, Hawaii, created its first constitution.171
During this period the other forty-eight states adopted their first constitutions:
fourteen in the eighteenth century, seventeen in the first half of the nineteenth
century, fifteen in the latter half of the nineteenth century, and four during the
twentieth century.172 During this same period thirty-one states revised their
original constitutions, including fifteen in the twentieth century; and the
majority of states have had three or more constitutions.173 The fact that
constitutional creation and revision have occurred over such an extended
period has affected the contents and design of those constitutions, because
over time understandings of what a good state constitution should include have
changed dramatically.174 The people in a state can decide whether their
constitution should be a short framework document, as was typical in the late
eighteenth century;175 a detailed instrument of government, as was typical in
the latter part of the nineteenth century;176 or a more streamlined document, as
was typical in the twentieth century.177 They can determine which subjects are
appropriate to include in the constitution and which are not, and in particular
they can decide whether or not to insert detailed policy prescriptions in their
169 FRITZ, supra note 140, at 34.
170 DODD, supra note 125, at 65–71 (discussing how popular ratification “became the
exception rather than the rule in the Southern States” during the civil war period).
171 See BOOK OF THE STATES 2013, Table 1.1, supra note 116.
172 Id. Connecticut and Rhode Island retained their colonial charters as their
constitutions, while excising royalist features, and did not adopt new constitutions until
1818 and 1842 respectively. William F. Swindler, Seedtime of an American Judiciary:
From Independence to the Constitution, 17 WM. & MARY L. REV. 503, 506 & n.12 (1976). I
here count the constitutions they adopted in the nineteenth century as their first
constitutions.
173 BOOK OF THE STATES 2013, Table 1.1, supra note 116.
174 For a pioneering account of changing understandings of state constitutional design,
see generally Daniel J. Elazar, The Principles and Traditions Underlying State
Constitution, 12 PUBLIUS 11 (1982); see also G. Alan Tarr, Models and Fashions in State
Constitutionalism, 1998 WIS. L. REV. 729.
175 TARR, UNDERSTANDING, supra note 9, at 117.
176 Id. at 118–21.
177 Id. at 132–33.
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documents.178 They can seek to reduce corruption and the power of special
interests by imposing procedural restrictions designed to promote greater
transparency, by restricting the use of special laws where general laws are
possible, and by imposing restrictions on legislatures or by transferring their
power elsewhere.179 They can decide whether to constitutionalize matters,
withdrawing them altogether from legislative consideration, or they can grant
broad discretion to the people’s representatives.180 They can decide whether to
speak in general terms or in detailed prescriptions, thereby affecting the range
of discretion available to legislators and other government officials.181 They
can create opportunities for direct popular oversight and input through direct
democracy, or they can rely on the system of representation to ensure
accountability to the public.182 Thus the people do not merely have the
authority to create and re-create state constitutions, but also to create quite
different charters and quite different systems of government.183
The people’s power to frame state constitutions also enables them to
influence constitutional interpretation. The people can frame state provisions
with specificity to reduce the need for interpretation—for example, several
states during the latter half of the nineteenth century added provisions
expressly prohibiting aid to religious institutions and/or religious schools.184
The people can also insert provisions to overturn disfavored judicial
interpretations, as California and Massachusetts did in reinstating the death
penalty.185 In addition, they can change their constitutions to preclude
disfavored judicial interpretations—consider the proliferation of state
provisions defining marriage in the wake of Goodridge v. Department of
Public Health.186 The people can include provisions directing how courts
should interpret the constitution, as Florida did when it required the state’s
courts to interpret the state ban on unreasonable search or seizure no more
broadly than the U.S. Supreme Court interpreted the Fourth Amendment.187
178 See G. Alan Tarr, Explaining State Constitutional Change, 60 WAYNE L. REV. 10–
11 (2014) [hereinafter Tarr, Explaining].
179 Id.
180 Id.
181 Id.
182 Id.
183 For a detailed discussion, see TARR, UNDERSTANDING, supra note 9, at 118–21,
132–34.
184 See generally G. Alan Tarr, Church and State in the States, 64 WASH. L. REV. 73
(1989).
185 On the reinstitution of the death penalty, see CAL. CONST. art. I, § 27, overruling
People v. Anderson, 493 P.2d 880, 899 (Cal. 1972), and MASS. CONST. art. CXVI,
overruling Dist. Attorney v. Watson, 411 N.E.2d 1274, 1286–87 (Mass. 1980). On state
constitutional prohibitions of same-sex marriage, see 50 States with Legal Gay Marriage,
PROCON.ORG, http://gaymarriage.procon.org/view.resource.php?resourceID=004857 [https://
perma.cc/EE8U-673V] (last updated July 1, 2015).
186 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003).
187 For Florida’s “lockstep” requirement, see FLA. CONST. art. I, § 12.
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Finally, the more recent the constitution is adopted by the people, the more
likely they are to have anticipated current problems and dealt with them in the
constitutional text. The availability of directly pertinent constitutional
language means that there is less need for creative judicial interpretation to
apply constitutional principles to contemporary concerns.
XII. STATE CONSTITUTIONAL REVISION AND POPULAR
CONSTITUTIONALISM
Initially, state constitutional revision and the right to revolution were
intertwined in constitutional thought. Thus, Christian Fritz observes that “as
Americans included it in their constitutions, the right of revolution came to be
seen as a constitutional principle permitting the people as the sovereign to
control government and revise their constitutions without limit.”188 The
popular role in both revision and revolution was expressly recognized in state
constitutions. By 1850, more than eighty percent of state constitutions
acknowledged that “political society is derived from the people and
established with their consent,”189 and more than half expressly stated that
“the people . . . have the inherent, sole, and exclusive right of regulating the
internal government . . . and of altering and abolishing their constitution and
form of government whenever it may be necessary to their safety and
happiness.”190 Yet over time constitutional revision became understood as the
more capacious notion, because revolution was justified only by governmental
oppression, whereas revision was justified whenever the people concluded that
constitutional change would improve their situation.191 Indeed, recourse to the
people through constitutional revision became a key feature of state politics in
the nineteenth century.192 In part, these appeals to the people were backwardlooking, based on the belief that a frequent recurrence to first principles would
encourage popular attachment to the constitution and ensure constitutional
fidelity.193 But in part they were forward-looking, based on the premise of
progress in constitutional thinking and on the need to adapt the basic law to
changing circumstances and attitudes.194 As Thomas Jefferson put it: “We
might as well require a man to wear still the coat which fitted him when a boy,
188 FRITZ, supra note 140, at 25.
189 LAURA J. SCALIA, AMERICA’S JEFFERSONIAN EXPERIMENT: REMAKING STATE
CONSTITUTIONS 1820–1850, at 25 (1999) (quoting DEL. CONST. pmbl. (1792)).
190 Id. (alterations in original) (quoting MO. CONST. art. XIII, § 2 (1820)).
191 See infra Part XII.
192 See FRITZ, supra note 140, at 54.
193 See id.
194 SCALIA, supra note 189, at 132.
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as civilized society to remain ever under the regimen of their barbarous
ancestors.”195
The most common procedure for state constitutional revision involves the
people’s representatives in the legislature referring to the people the question
of whether to call a convention. In some states the legislature can propose a
convention by a simple majority vote196; in others, the requirement is twothirds.197 Whichever the procedure, if the people concur, they then elect
convention delegates; and if it is to be a limited convention, they may place
restrictions on the matters that the delegates can address.198 Ultimately the
people approve or reject the delegates’ proposal or proposals.199
Forty-one states specify the procedure for calling conventions in their
constitutions, and in the remaining states it is understood that legislatures
possess that power as part of their plenary legislative power.200 Within this
framework there is considerable interstate variation. In authorizing a
convention, two states—Illinois and Nebraska—require a three-fifths vote in
the legislature for a popular referendum on calling a convention, and South
Dakota likewise requires a three-quarters vote but dispenses with the
referendum.201 Twenty states require a two-thirds legislative vote, and in five
of these no popular vote is required, while sixteen states require only a
majority vote in the legislature for a popular referendum on a convention.202
As to the popular vote for a convention, in those states that require such a vote,
twenty-one require a majority of those voting on the question, with Kentucky
and Nebraska also specifying a minimum turnout.203 But some states require
195 Letter from U.S. President Thomas Jefferson to Samuel Kercheval (July 12, 1816),
http://www.constitution.org/tj/ltr/1816/ltr_18160712_kercheval.html [https://perma.cc/AJ8FRKKS]; see also FRITZ, supra note 140, at 54–55.
196 ALA. CONST. art. XVIII, § 284.
197 MD. CONST. art. XIV, § 2; N.H. CONST. art. 100(c).
198 See MD. CONST. art. XIV, § 1.
199 Gerald Benjamin, Constitutional Amendment and Revision, in 3 STATE
CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE AGENDA OF STATE
CONSTITUTIONAL REFORM 177, 199–200 (G. Alan Tarr & Robert F. Williams eds., 2006).
A convention may, at its discretion, decide to submit its work as a single question or as
multiple questions. The advantage of the latter approach is that it avoids having a
constitution rejected because it includes one or a few controversial provisions. Id. at 199.
200 Id. at 192. In 1883, the Rhode Island Supreme Court ruled that a convention could
not be called in the state because the constitution gave no express authority for revision by
a convention, a position since overturned by Article XIV, Section 2 of the state’s current
constitution adopted in 1973, which was modeled on the People’s Constitution. In re
Constitutional Convention, 14 R.I. 649, 653–54 (1883); see also PATRICK T. CONLEY &
ROBERT G. FLANDERS, JR., THE RHODE ISLAND STATE CONSTITUTION 292 (2011)
(discussing the shift to limited constitutional conventions).
201 E.g., ILL. CONST. art. XIV, § 1; NEB. CONST. art. XVI, § 1; S.D. CONST. art. XXIII,
§ 2.
202 BOOK OF THE STATES 2013, Table 1.2, supra note 117 (for authorizing
constitutional conventions detailing these requirements).
203 Id.
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more than a simple majority. For example, Illinois requires that three-fifths of
those voting on the question approve a convention.204 Ten states require a
positive vote by a majority of those voting in the election, so ballot fatigue can
affect the outcome: in Michigan, for example, the people voted
overwhelmingly for a convention in 1898 and 1904, but the majority was of
those voting on the question, not of those voting at the election.205 Finally, in
order to ratify the convention’s work, twenty-one states require a simple
majority on the question or questions, but Minnesota demands a three-fifths
positive vote, and New Hampshire two-thirds.206 Colorado requires a majority
of those voting in the election, and Hawaii too imposes a turnout
requirement.207
The states have also developed mechanisms for calling conventions
whereby the people can circumvent the state legislature if it is unwilling to
act.208 In its 1776 constitution Pennsylvania created the Council of Censors, an
elected body similar to a grand jury, which met every seven years to determine
whether the constitution was being violated and could either propose
amendments or call a constitutional convention.209 Vermont copied
Pennsylvania’s effort to “institutionalize and routinize constitutional
reassessment,”210 and although the Council of Censors failed in Pennsylvania
and was eliminated in the 1790211 constitution, it continued to operate with
some success in Vermont until 1869.212 In several states the people have
proven to be good Jeffersonians, placing in their constitutions the requirement
that the people be consulted to vote at regular intervals on whether to call a
convention.213 The Massachusetts Constitution of 1780 pioneered the practice,
providing for a popular vote in 1795, and the New Hampshire Constitution of
1784 required that the convention question be submitted to voters every seven
years. (In New Hampshire, this was vitally important, because the constitution
did not authorize any other mode of constitutional change). Today, fourteen
states provide for a periodic vote on whether to call a convention, with eight
states posing the question every twenty years, four every ten years, Michigan
every sixteen years, and Hawaii every nine years.214 Florida, Montana, and
204 ILL. CONST. art. XIV, § 1(c).
205 DODD, supra note 125, at 53.
206 MINN. CONST. art. IX, § 3; N.H. CONST. art. 100(c).
207 This account of state legal requirements relies on Benjamin, supra note 199, at
192–200.
208 PA. CONST. § 47 (1776).
209 Id.
210 See KYVIG, supra note 50, at 32.
211 See Lutz, Patterns, supra note 57, at 140.
212 KYVIG, supra note 50, at 32. On the operation of the Council of Censors, see
DONALD S. LUTZ, POPULAR CONSENT AND POPULAR CONTROL: WHIG POLITICAL THEORY IN
THE EARLY STATE CONSTITUTIONS 130–32 (1980) [hereinafter LUTZ, POPULAR CONSENT].
213 See Benjamin, supra note 199, at 127.
214 See id. at 193–210.
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POPULAR CONSTITUTIONALISM
267
South Dakota allow the people to call constitutional conventions via the
initiative, though so far none has been convened through that procedure.215
Although the people in the states have taken advantage of these
opportunities to call conventions and revise their constitutions or to reject
proposed revisions, the level of this activity has varied over time. The
nineteenth century saw a great deal of constitutional revision, but during the
twentieth and twenty-first centuries, only twelve states have revised their
constitutions, although five states did adopt their first—and only—
constitutions. During the nineteenth century, states held 144 constitutional
conventions, but since then only sixty-four.216 During the twentieth century,
the period of greatest activity was from 1963–1976, when seven states adopted
new constitutions in the wake of the Supreme Court’s reapportionment rulings
and voters rejected six constitutions proposed by conventions and three others
submitted by state legislatures.217 Since 1970, the outcome of votes on
automatic convention calls has been positive only four times.218 In part, these
negative votes may reflect a popular distrust of constitutional revision, which
is increasingly seen as dominated by the same political elites and special
interests that dominate ordinary politics.219 In part, however, the rejection of
215 FLA. CONST. art. XI, § 4; MONT. CONST. art. XIV, § 2; S.D. CONST. art. XXIII, § 2.
216 DINAN, STATE CONSTITUTIONAL TRADITION, supra note 148, at 8 tbl.1-1.
217 The key Supreme Court ruling compelling reapportionment of both houses of state
legislatures on a “one person one vote” basis was Reynolds v. Sims, 377 U.S. 533, 588
(1964). The states in which constitutions proposed by conventions were rejected include
Arkansas (1970), Maryland (1968), New Mexico (1969), New York (1967), and Rhode
Island (1968). States in which constitutions submitted by legislatures were rejected include
Idaho (1970), and Oregon (1970). See Tarr, Explaining, supra note 178, at 16 n.34, 18. For
a study of the dynamics in both the successful and unsuccessful conventions, see ELMER E.
CORNWELL, JR. ET AL., STATE CONSTITUTIONAL CONVENTIONS: THE POLITICS OF THE
REVISION PROCESS IN SEVEN STATES (1975).
218 See Benjamin, supra note 199, at 177–210.
219 As I have noted elsewhere:
Perhaps the most striking trend is toward the professionalization of state constitutional
change. Illustrative of this shift is the decline of the constitutional convention. In the
nineteenth century, conventions served as a mechanism for popular influence on
politics, often called by reluctant officials in response to popular pressures. But in the
twentieth century far fewer conventions have been called, and their character has
changed. Typically, it has been political elites and professional reformers who have
campaigned for constitutional revision, with the populace reduced to rejecting
convention calls and proposed constitutions to register its distrust of a process that it
no longer feels it controls. The professionalization of state constitutional change is
also evident in the increasing use of constitutional commissions, expert bodies
established without popular input, to set the agenda of constitutional change,
identifying the problems that deserve attention and the appropriate solutions to those
problems.
TARR, UNDERSTANDING, supra note 9, at 170; see also Thomas Gais & Gerald Benjamin,
Public Discontent and the Decline of Deliberation: A Dilemma in State Constitutional
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conventions may reflect a popular preference for piecemeal rather than
comprehensive reform, as the decline in constitutional revision has been
accompanied by an increase in state constitutional amendment, in which the
people likewise play the key role. Whatever the cause, no state has revised its
constitution in more than a quarter century.
If the people have the power to revise constitutions, can they emulate the
Philadelphia Convention by ignoring established procedures in the process?
Christian Fritz has nicely framed the issue:
The people’s sovereignty justified constitutional change when constitutions
(state or federal) were silent about the means for revision or when it seemed
appropriate to bypass existing procedures. More controversial was the notion
that such change could occur independent of the existing government, in
particular without the permission of the legislature.220
The prime example of this was the so-called Dorr Rebellion in Rhode
Island.221 Sixty-five years after independence, Rhode Island continued to be
governed under the charter of 1663, with popular agitation for constitutional
change stymied by an intransigent legislature and a severely restricted
franchise.222 In response, in 1841, an extralegal People’s Convention was
called, with delegates selected by an expanded electorate.223 The convention
prepared a draft constitution, and then adjourned in October to allow for
popular comment.224 It reconvened in mid-November to finalize the
constitution, and in December 1841, nearly 14,000 people ratified the People’s
Constitution.225 In 1842, elections were held under the People’s Constitution,
and Thomas Dorr was elected governor.226 These developments led the
legislature to call a Landholders’ Convention, which completed a new
constitution in early 1842.227 However, the document, which made some
concessions to the Dorrites, was rejected in a close vote.228 An election was
Reform, 68 TEMP. L. REV. 1291 (1995) (discussing the decline in public engagement in the
constitutional reform process).
220 FRITZ, supra note 140, at 240. The preeminent nineteenth-century commentator on
state constitutions, John Jameson, condemned the People’s Convention, insisting that
constitutional conventions were to operate under the authority of law and constitutions and
not above them. Those that did not he termed revolutionary conventions. See JAMESON,
supra note 148, at 6–9.
221 See generally FRITZ, supra note 140, at 246–54 (discussing the Dorr Rebellion); see
also ERIK J. CHAPUT, THE PEOPLE’S MARTYR: THOMAS WILSON DORR AND HIS 1842
RHODE ISLAND REBELLION (2013) (providing further background on the Dorr Rebellion).
222 See FRITZ, supra note 140, at 246.
223 Id. at 251–56.
224 See CHAPUT, supra note 221, at 54.
225 Id. at 76–77.
226 Id. at 4.
227 Id. at 53.
228 Id. at 84–85.
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then held under the old constitution, resulting in two state governments
competing for authority.229
The state legislature under the old constitution called for another
constitutional convention, which in 1843 proposed a revised constitution that
offered concessions to the opponents of the 1663 charter.230 This constitution
was ratified, although many of Dorr’s supporters boycotted the vote, so that it
received less than half the votes that the People’s Constitution had.231 Dorr
was imprisoned for his part in the attempted overthrow of the charter, and in
Luther v. Borden,232 his attempt to gain vindication before the U.S. Supreme
Court failed. His compatriots may have lost the battle, but they did win the
war, as the Rhode Island General Assembly would not have called the 1843
convention nor offered concessions on apportionment and the franchise absent
the Dorr Rebellion.233
Yet the Rhode Island example stands out precisely because it is so
atypical. The Dorrites had to circumvent the malapportioned and
unrepresentative legislature because its members controlled the legal path to
constitutional reform and refused to call a convention that might divest them
of their privileges. But in no other state did the people attempt to circumvent
malapportioned state legislatures, even when population shifts made the
overrepresentation of rural interests particularly egregious, perhaps because
state constitutions provided other means for seeking constitutional change or
because extralegal efforts seemed futile or inappropriate in a mature political
society. Whatever the explanation, the Supreme Court’s “one person, one
vote” rulings have removed the obstacle of unrepresentative legislatures, and
the proliferation of constitutionally prescribed opportunities for popular
constitutionalism makes resorting to extralegal means unnecessary
XIII. THE PROPOSAL OF STATE CONSTITUTIONAL AMENDMENTS AND
POPULAR CONSTITUTIONALISM
Only eight of the initial state constitutions specified procedures for
amendment.234 The Delaware and New Jersey constitutions declared certain
key provisions altogether immune from alteration.235 Several early nineteenthcentury state constitutions likewise did not expressly provide for amendment,
perhaps assuming that the legislature had the inherent power to call
229 Id. at 2–3.
230 CHAPUT, supra note 221, at 2–3.
231 See id. at 85.
232 Luther v. Borden, 48 U.S. (7 How.) 1, 88 (1849).
233 FRITZ, supra note 140, at 254.
234 TARR, UNDERSTANDING, supra note 9, at 73–74. States without amendment
procedures in the late eighteenth century included: New Jersey, New York, Virginia, North
Carolina, Connecticut, and Rhode Island. See id. at 74.
235 DEL. CONST. art. XXX (1776); N.J. CONST. art. XXII (1776).
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conventions.236 In some instances, the failure to include amendment provisions
proved controversial: at a town meeting in Lexington, one person objected to
the absence of an amendment provision in the proposed 1778 Massachusetts
constitution, insisting it was necessary to “give satisfaction to the people; and
be a happy means, under providence, of preventing popular commotions,
mobs, bloodshed, and civil war.”237
Of those early constitutions that addressed the subject, some made
constitutional change exceedingly difficult. For example, the Delaware
Constitution of 1776 permitted amendments only with the concurrence of fivesevenths of the lower house of the legislature and seven-ninths of the
legislative council. The Maryland Constitution of 1776 required that
amendments twice receive a two-thirds vote in the legislature, with an election
intervening.238 But over time the processes of constitutional amendment
changed to make it easier for the people to amend their constitutions by
simplifying the procedures for amendment, by adding further modes of
amendment, and by reducing the percentage of voters necessary to ratify
amendments.
Initially, several states concluded that the same objections that applied to
legislatures writing constitutions applied to their amending constitutions, and
so the constitutions of Pennsylvania (1776), Vermont (1777), Georgia (1777),
Massachusetts (1780), and New Hampshire (1784) expressly prohibited
legislative amendment, relying instead on constitutional conventions.239
Indeed, in New Hampshire the constitutional convention remained the only
mechanism for proposing amendments until 1964. But with the development
of popular ratification this objection lost much of its force, and over time
roughly ninety percent of state constitutional amendments have been proposed
through state legislatures.240
Many states initially required passage of proposed amendments in two
successive legislative sessions with an intervening election, so that the people
could by their votes express their views on proposed amendments, and fifteen
states retain some form of that requirement today.241 Although the two-session
requirement does give the people a chance to render a verdict by unseating
236 New states admitted to the Union without amendment provisions in their
constitutions included Ohio (1802), Louisiana (1812), Indiana (1816), and Illinois (1818).
See FRITZ, supra note 140, at 384 n.24.
237 KYVIG, supra note 50, at 30.
238 DEL. CONST. art. XXX (1776); MD. CONST. art. LIX (1776). On constitutional
amendment under early state constitutions, see KRUMAN, supra note 7, at 14, 81; see also
LUTZ, POPULAR CONSENT, supra note 212, at 81.
239 PA. CONST. § 47 (1776); VT. CONST. art. II, § XLIV (1777); GA. CONST. art. LXIII
(1777); MASS CONST. art. X (1780); N.H. CONST. art. C (1784).
240 Benjamin, supra note 199, at 181.
241 DINAN, STATE CONSTITUTIONAL TRADITION, supra note 148, at 14. These states
include: Delaware, Connecticut, Hawaii, Indiana, Iowa, Massachusetts, Nevada, New
Jersey, New York, Pennsylvania, South Carolina, Tennessee, Vermont, Virginia, and
Wisconsin. Id.
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legislators, it also slows the effort to address pressing problems, particularly in
states whose legislature only meets biennially. The remaining thirty-five
states, confident that popular ratification ensures sufficient popular control,
have dispensed with dual passage.242 Yet considerable variation remains, as
states may authorize proposing amendments by a supermajority in two
legislative sessions, by supermajority in a single session, by a simple majority
in two sessions, or by a simple majority in a single session.243 In fact, four
states—Connecticut, Hawaii, New Jersey, and Pennsylvania—have combined
the alternatives, permitting proposal by simple majorities in two sessions or by
an extraordinary majority in a single session.244
Most state constitutions also provide modes of amendment that do not
require legislative approval, lest the people be stymied by legislators’ hostility
to changes that might adversely affect them. The earliest of these was the
constitutional convention, which could be used for amendment, as well as for
revision; most states permit limited, as well as unlimited, conventions. This
only partially solved the problem, however, because a legislature that was
adverse to proposing needed amendments might also resist calling a
convention, particularly when the convention could be expected to remedy
malapportionment resulting from population growth and population shifts in
the state. Georgia sought to address the problem by obliging the legislature to
call a convention if petitioned to do so by a majority of state’s citizens in a
majority of its counties.245 Nonetheless, the costs of conventions and the
intransigence of legislators prompted a search for other alternatives.
During the twentieth century, states multiplied modes of proposal and
eased requirements for proposal and ratification, thereby facilitating
constitutional amendment. The first reform was the constitutional initiative,
now in use in eighteen states, which allows proposed amendments to be placed
on the ballot without legislative approval.246 The people are central throughout
242 Id.
243 Id.
244 KRUMAN, supra note 7, at 55–57; Benjamin, supra note 199, at 182.
245 KYVIG, supra note 50, at 31. Even if the people could persuade the legislature to
call a convention, the legislature controlled the apportionment of seats in the convention,
making substantial reform difficult. For examples of this, see JOHN J. DINAN, THE VIRGINIA
STATE CONSTITUTION 244–48 (Oxford Univ. Press 2011) (2005); see also JOHN V. ORTH &
PAUL MARTIN NEWBY, THE NORTH CAROLINA STATE CONSTITUTION 199 (2d ed. 2013)
(discussing how North Carolina apportioned seats at convention).
246 These states include: Arizona; Arkansas; California; Colorado; Florida; Illinois;
Massachusetts; Michigan; Mississippi; Missouri; Montana; Nebraska; Nevada; North
Dakota; Ohio; Oklahoma; Oregon; and South Dakota. Two of these states—Massachusetts
and Mississippi—employ what is known as the indirect initiative, which significantly
increases the difficulty of amendment by initiative. In Massachusetts, an initiative proposal
is not placed on the ballot unless it is passed by at least one-quarter of the state legislature
in two consecutive sessions. In Mississippi, an initiative may be placed on the ballot
without legislative action, but the legislature can place an amended version on the ballot
alongside the initial proposal, and voters choose not only whether to ratify the initiative
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the process of proposal and ratification. Individuals or groups within the
populace decide what measures to propose, the people by signing or refusing
to sign petitions determine whether proposals appear on the ballot, and at
election the people determine whether the measures appearing on the ballot
should be ratified. The constitutional initiative was initially adopted by Oregon
in 1902, and twelve other states also adopted it during the Progressive Era.247
Four more states adopted the constitutional initiative during the wave of
constitution-making that followed the U.S. Supreme Court’s “one person, one
vote” rulings,248 and in 1992, Mississippi adopted the constitutional initiative
for a second time, seventy years after its supreme court had struck down its
initiative as unconstitutional.249 From 2008–2014, seventy-eight constitutional
initiatives appeared on the ballot, and thirty-four of them were approved.
Nonetheless, most amendments are proposed by state legislatures—during the
same period, legislatures proposed 522 amendments, and these amendments
enjoyed a far higher rate of success (382 ratified).250
Finally, in adopting its 1968 constitution, Florida provided for the
convening in ten years and every twenty years thereafter of a Constitutional
Revision Commission, which has the power to place proposals for amendment
on the ballot without prior legislative scrutiny.251 This thirty-seven-member
commission—fifteen appointed by the governor, nine each by the house
speaker and the senate president, and three by the chief justice of the supreme
court—was authorized to address all constitutional issues and to propose
constitutional changes directly to the people.252 In 1998, Florida extended this
model, creating by amendment a Taxation and Budget Reform Commission,
which met in 2008 and meets every twenty years thereafter.253 This
commission, all of whose twenty-nine members are appointed by the governor,
the speaker of the house, or the president of the senate, likewise is authorized
proposal, but also between the two versions of the proposal. These requirements have made
amendment by initiative difficult—Mississippi, for example, has had only two measures
placed on the ballot via constitutional initiative, and of these failed adoption.
See INITIATIVE & REFERENDUM INST., http://iandrinstitute.org/Mississippi.htm [https://
perma.cc/M257-P6RK].
247 History of Initiative & Referendum in Oregon, BALLOTPEDIA, https://
ballotpedia.org/History_of_Initiative_%26_Referendum_in_Oregon [https://perma.cc/3J23THJH].
248 The Supreme Court ruled that both houses of state legislatures should be
apportioned on the basis of “one person, one vote” in Reynolds v. Sims, 377 U.S. 553, 588
(1964). On the impetus this ruling provided for state constitutional change, see Tarr,
Explaining, supra note 178, at 28–29.
249 Power v. Robertson, 93 So. 769, 777 (Miss. 1922).
250 See 2014 Ballot Measures, BALLOTPEDIA, https://ballotpedia.org/2014_ballot_
measures [https://perma.cc/W8TJ-Z82L] (discussing an overview of 2014 ballot measures).
See generally DINAN, STATE CONSTITUTIONAL TRADITION, supra note 148 (compiling data
of constitutional changes).
251 FLA. CONST. art. XI, § 2.
252 Id.
253 Id. § 6.
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to submit directly to the people amendments dealing with fiscal matters and
budgetary processes.254
On initial inspection, the Florida commissions may appear to attenuate the
role of the people in constitutional change, because the people play no direct
role in choosing their members or crafting the proposals that are submitted for
ratification.255 Yet the adoption of these mechanisms for proposing
amendments hardly signaled a rejection of popular constitutionalism. In
addition to authorizing the two commissions to propose amendments, Florida
continues to provide for proposal of amendments by the legislature, by
constitutional initiative (added at the same time the Constitutional
Commission was), and by constitutional convention. Moreover, the
commissions have learned to consult public opinion in undertaking their
deliberations. After all proposals were rejected in 1978, the Constitutional
Revision Commission in 1998 supplemented its regular meetings with public
hearings throughout the state to ensure that public opinion was reflected in
their proposals.256 Perhaps as a result, eight of its nine proposals were ratified
by the voters.257
The proliferation of mechanisms for proposing amendments and the easing
of requirements for proposing them has promoted a dramatic expansion of
state constitutional amendment during the twentieth and twenty-first centuries.
(Other factors as well have contributed to the decline of revision and the rise
of amendment.)258 Still, as noted, about ninety percent of state constitutional
amendments are proposed by state legislatures.259 Moreover, legislatively
proposed amendments enjoy a considerably higher success rate than those
proposed by other means, such as the constitutional initiative. Let us turn now
to the ratification process for state constitutional amendments.
254 Id.
255 See Robert F. Williams, Is Constitutional Revision Success Worth Its Popular
Sovereignty Price?, 52 FLA. L. REV. 249, 249–73 (2000).
256 Rebecca Mae Salokar, Constitutional Revision in Florida: Planning, Politics,
Policy, and Publicity, in 1 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE
POLITICS OF STATE CONSTITUTIONAL REFORM 19, 19 (G. Alan Tarr & Robert F. Williams
eds., 2006).
257 For an analysis of the factors contributing to the commission’s success, see id. at
26–51.
258 See generally Gerald Benjamin & Thomas Gais, Constitutional Conventionphobia,
1 HOFSTRA L. & POL’Y SYMP. 53 (1996) (discussing the aversion to constitutional
conventions in state constitutional change); Robert F. Williams, Are State Constitutional
Conventions Things of the Past? The Increasing Role of the Constitutional Commission in
State Constitutional Change, 1 HOFSTRA L. & POL’Y SYMP. 1 (1996) (discussing the
increasing role of constitutional commissions in state constitutional change).
259 See DINAN, STATE CONSTITUTIONAL TRADITION, supra note 148, at 1.
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XIV. THE RATIFICATION OF STATE CONSTITUTIONAL AMENDMENTS AND
POPULAR CONSTITUTIONALISM
The Connecticut Constitution of 1818 was the first state constitution to
provide for popular ratification of amendments. Today, forty-nine states
provide for popular ratification of state constitutional amendments, with the
majority required for ratification regardless of how the amendment is
proposed.260 Forty-three states require ratification by a majority of those
voting on the amendment, with Nevada requiring that voters approve
amendments in two separate elections before they take effect.261 However,
some states make ratification more difficult. A few states impose a turnout
requirement, similar to the requirement for a quorum in legislative sessions.
For example, Hawaii requires that those voting on the amendment include
either a majority of those voting in the general election or the equivalent of
thirty percent of those registered if a special election is used,262 while
Nebraska requires that the majority for the amendment also exceed thirty-five
percent of those voting in the election.263 Minnesota264 and Wyoming265
require passage by a majority of those voting in the election. Tennessee
requires that the vote take place at a general election in which the governor is
to be elected, with passage of the amendment requiring a majority of those
voting in the gubernatorial election.266 Two states require passage by supermajorities: New Hampshire, a two-thirds vote,267 and Illinois, either a majority
of those voting in the election or three-fifths of those voting on the question.268
Finally, New Mexico requires higher popular majorities to amend provisions
on the franchise or education, than to pass other amendments.269
In some instances when ratification requirements have proved too
burdensome, political forces sought to circumvent the requirements. At the
dawn of the twentieth century, when ratification of amendments required a
majority of those voting in the election, raising the possibility of defeat by
ballot roll-off, political parties in Ohio made approval of amendments part of
the party ballot, so that those voting a straight-party ticket would be counted as
260 See Delaware Constitution, BALLOTPEDIA, https://ballotpedia.org/Delaware_
Constitution [https://perma.cc/W6DW-UHTT]. Delaware is the lone exception. Its
constitution can be amended by a two-thirds vote by two consecutive legislatures without
any ratifying vote by the people. Id.
261 NEV. CONST. art. XVI, § 1.
262 HAW. CONST. art. XVII, § 1.
263 NEB. CONST. art. III-4.
264 MINN. CONST. art. IX, § 1.
265 WYO. CONST. art. XX, § 1.
266 TENN. CONST. art. XI, § 3.
267 N.H. CONST. art. 100(c).
268 ILL. CONST. art. XIV, § 1(c).
269 N.M. CONST. art. XIX, § 1; see also Benjamin, supra note 199, at 185 (discussing
substantive limits on and special majorities required for amending constitutions).
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voting for ratification.270 And in Illinois, constitutional reform forces, after
many failed attempts, were able to adopt a “Gateway Amendment” that made
it easier to amend the state constitution.271 But for the most part, the easing of
ratification requirements to facilitate amendment has occurred through normal
constitutional channels. Thus, during the nineteenth century, constitutional
conventions eased requirements in order to permit constitutional change in
response to shifts in population within their states, and in the twentieth
century, they did so to overcome entrenched interests and facilitate enactment
of popular measures. So whereas at the outset of the twentieth century, two
states required a supermajority for ratification and eleven required a majority
of those voting in the election, by its conclusion only one state required a
supermajority of voters to approve amendments, and only five required
approval by a majority of voters in the election.272
XV. STATE CONSTITUTIONALISM AS POPULAR CONSTITUTIONALISM
The state experience with constitutional change displays a commitment to
popular constitutionalism, reflected in institutions that give the people a direct
role in constitutional creation and change, and in constitutional reforms
designed to empower current popular majorities. Of course, not all the reforms
enhanced the popular role in constitutional amendment—the people’s votes
were determinative even before several were enacted—but they did tend to
make it easier for a numerical majority of the people to work its constitutional
will. Opponents sometimes objected that this easing of the requirements for
amendment made their state constitutions not merely “flexible but absolutely
wobbly” and worried that they “open[ed] the door to a pure and absolute
democracy.”273 But these objections were generally unavailing, because most
states had constitutionally committed themselves to popular constitutionalism.
Illustrative of the provisions reflecting this is Section 2 of the New Jersey Bill
of Rights, found in both the state’s 1844 and 1947 constitutions: “All political
power is inherent in the people. Government is instituted for the protection,
security, and benefit of the people, and they have the right at all times to alter
or reform the same, whenever the public good may require it.”274 So insofar as
efforts to facilitate constitutional change excited opposition, that opposition
was based less on principled objections to popular constitutionalism than on an
obdurate desire to hold onto partisan or regional advantages safeguarded by
existing arrangements.
270 See STEVEN H. STEINGLASS & GINO J. SCARSELLI, THE OHIO STATE CONSTITUTION:
A REFERENCE GUIDE 44 (Oxford Univ. Press 2011) (2004).
271 ANN M. LOUSIN, THE ILLINOIS STATE CONSTITUTION: A REFERENCE GUIDE 23
(2010).
272 DINAN, STATE CONSTITUTIONAL TRADITION, supra note 148, at 56–58.
273 Id. at 55 (quoting Walter Wixson, a delegate to the 1907–1908 Michigan
Convention).
274 N.J. CONST. art. I, § 2 (emphasis added).
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XVI. CONCLUDING THOUGHTS
In The Federalist No. 43, James Madison contended that Article V struck
the proper balance between “that extreme facility, which would render the
Constitution too mutable; and that extreme difficulty, which might perpetuate
its discovered faults[;]”275 and certainly the Federal Constitution is easier to
amend than its predecessor. But with a few notable exceptions, such as the two
decades following ratification, Reconstruction, and the Progressive Era, formal
constitutional change has proven difficult. One might attribute the infrequency
of amendment to the wisdom of the Constitution’s drafters, and there is
doubtless some truth to that, although the Founders themselves hardly viewed
the Constitution as perfect.276 But it is more likely that the infrequency of
amendment is not a reliable indicator of constitutional change. Such change
has occurred, but it has occurred outside the channels prescribed in Article V:
through political practice, constitutional construction, and creative judicial
interpretation.277
Indeed, one commentator has suggested that “[i]n its initial commitment to
a written constitution and some version of rule-of-law constitutionalism at the
national level and its later turn to complete reliance on non-Article V means to
cope with significant constitutional change, the United States is unique.”278
Insofar as this is the case, it raises legitimacy questions, and these have been
endlessly debated. But for our purposes, the reliance on constitutional change
outside Article V is important because of the questions it raises about whether
the people’s authority over their Constitution has become attenuated. This
requires an examination of how—and to what extent—the people continue to
participate in constitutional change, constitutional interpretation, and defense
of the Constitution against misinterpretation or unwanted change. Indeed, one
may view the debate over advocates of popular constitutionalism and
proponents of judicial supremacy—what Larry Kramer characterized as the
275 THE FEDERALIST NO. 43, supra note 28, at 278.
276 As George Washington observed in a letter to Lafayette on February 7, 1788:
We are not to expect perfection in this world; but mankind, in modern times, have
apparently made some progress in the science of government. Should that which is
now offered to the People of America, be found on experiment less perfect than it can
be made, a Constitutional door is left open for its amelioration.
29 THE WRITINGS OF GEORGE WASHINGTON FROM THE ORIGINAL MANUSCRIPT SOURCES
1745–1799, at 411 (John C. Fitzpatrick ed., 1939).
277 See generally KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED
POWERS AND CONSTITUTIONAL MEANING (1999) (discussing constitutional construction);
Sanford Levinson, How Many Times Has the United States Constitution Been Amended?
(A) <26; (B) 26; (C) 27; (D) >27: Accounting for Constitutional Change, in RESPONDING
TO IMPERFECTION, supra note 52 (discussing constitutional change outside of Article V
channels).
278 See Griffin, supra note 52, at 58.
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key conflict—as fundamentally a dispute over who will control non-Article V
constitutional change.279
Looking at state constitutions, one encounters a vastly different situation.
As Alexander Hamilton reassured his readers in The Federalist No. 21, the
Federal Constitution “could be no impediment to reforms of State
Constitutions by a majority of the people in a legal and peaceable mode. That
right would remain undiminished. The guaranty could only operate against
changes to be effected by violence.”280 As this Article has shown, state
popular majorities have accepted Hamilton’s implicit invitation. The number
of state constitutions testifies to the people’s involvement in constitutional
creation and revision, and the frequency of amendment shows that the people
continue to participate in constitutional change even after the taste for revision
has abated. This is not to say that political practice, constitutional construction,
and creative judicial interpretation do not also produce state constitutional
change. One can, for example, view the “new judicial federalism” as an
attempt to introduce at the state level the sort of interpretive creativity
pioneered by the U.S. Supreme Court.281 In addition, interstate differences in
the frequency of state constitutional amendment and revision suggest that the
balance between formal and informal change has varied from state to state and
from era to era.
Despite these caveats, one can identify two distinct constitutional
traditions in the United States. The federal constitutional experience is rooted
in a Madisonian skepticism about constitutional change and about recurrence
to the people to resolve constitutional disputes.282 On occasion, as Bruce
Ackerman has shown, constitutional crises have encouraged popular
involvement in resolving constitutional conflicts, acting outside Article V.283
279 This is reflected in the subtitle of The People Themselves, that is, Popular
Constitutionalism and Judicial Review. Kramer concludes his book by noting:
[A] strong case can be made for easing the difficulty of amendment[s] . . . [but] there
is very little chance of revising the U.S. Constitution [for this purpose] . . . given the
cumbersomeness of our existing amendment process [so w]e simply have to live with
the jerry-built system of accountability that evolved for us in practice.
KRAMER, THE PEOPLE THEMSELVES, supra note 38, at 251 (footnote omitted).
280 THE FEDERALIST NO. 21, at 140 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
281 See TARR, UNDERSTANDING, supra note 9, at 162–70; see also ROBERT F.
WILLIAMS, THE LAW OF AMERICAN STATE CONSTITUTIONS 113–34 (2009).
282 Larry Kramer rightly insists Madison’s views on constitutional change are more
complex than a simple reliance on The Federalist Nos. 49 and 50 might suggest:
Yet it would be wrong to read Madison as repudiating or disavowing popular
constitutionalism. Quite the contrary, as a careful reading makes clear, Madison—like
Jefferson, like everyone else at the time—took the principle for granted. His quarrel
was not with the idea of popular constitutionalism, but with how best to make it
operational.
KRAMER, THE PEOPLE THEMSELVES, supra note 38, at 45.
283 ACKERMAN, FOUNDATIONS, supra note 3, at 266–69.
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But most constitutional change nationally has occurred with little direct
popular participation. This is not to say that federal constitutional change has
ignored popular views. Barry Friedman, among others, has argued that:
Ultimately, it is the people (and the people alone) who must decide what the
Constitution means. Judicial review provides a catalyst and method for them
to do so. Over time, through a dialogue with the justices, the Constitution
comes to reflect the considered judgment of the American people regarding
their most fundamental values. It frequently is the case that when judges rely
on the Constitution to invalidate the actions of the other branches of
government, they are enforcing the will of the American people.284
Nonetheless, there is a fundamental difference between “constitutional
doctrine tend[ing] to track public opinion”285 on high-salience issues on which
the people have strong views, even if one assumes that the influence of the
people on the Court is unidirectional, and ensuring, in Kramer’s words, that
“the people retain authority in the day-to-day administration of fundamental
law.”286 How to do this remains an issue for popular constitutionalists. Kramer
admits that “[m]obs were fine in their context and in their time, but no one,
least of all me, is suggesting that this is a good way to go about doing things
today.”287 Rather, he describes his “goal” as “restor[ing] a true departmental
system” as proposed by Madison and Jefferson.288 But this solution is itself
problematic—as Saikrishna Prakash and John Yoo have observed:
“Departmentalism, whatever its merits, cannot have grand populist
pretensions, for it says absolutely nothing about the people’s constitutional
role.”289 Nonetheless, Kramer’s embrace of departmentalism acknowledges
that if popular constitutionalism is to be more than episodic at the federal
level, there must be institutions through which the people can act.
The state constitutional experience, in contrast, reveals a Jeffersonian
openness to constitutional change and a commitment to frequent recurrence to
284 BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS
INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION 367–
68 (2010); see also JEFFREY ROSEN, THE MOST DEMOCRATIC BRANCH: HOW THE COURTS
SERVE AMERICA, at xii (2006) (“[C]ourts for most of American history have tended to
reflect the constitutional views of majorities.”). The analyses of Friedman and Rosen build
on Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National
Policy-Maker, 6 J. PUB. L. 280, 285 (1957) (“[T]he policy views dominant on the Court are
never for long out of line with the policy views dominant among the lawmaking majorities
of the United States.”).
285 Tom Donnelly, Making Popular Constitutionalism Work, 2012 WIS. L. REV. 159,
162.
286 Larry D. Kramer, Popular Constitutionalism, Circa 2004, 92 CALIF. L. REV. 959,
961 n.3 (2004).
287 Kramer, Response, supra note 4, at 1175.
288 Id. at 1180.
289 Saikrishna Prakash & John Yoo, Against Interpretive Supremacy, 103 MICH. L.
REV. 1539, 1545 (2005) (reviewing KRAMER, THE PEOPLE THEMSELVES, supra note 38).
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the people, actively involving them in constitutional creation, revision, and
amendment. To facilitate this, the states have developed institutions through
which the people can regularly act, and where obstacles have arisen limiting
popular involvement in constitutional matters, the states have modified their
institutions to facilitate such involvement. As a result, whereas popular
constitutionalism at the federal level is episodic, popular constitutionalism in
the states is ongoing, and this gives a distinctive character to state popular
constitutionalism.290
To understand this, consider once again how two of its leading advocates
have portrayed popular constitutionalism at the federal level. Bruce Ackerman
depicts popular constitutionalism as involving a mobilized populace acting
when questions of fundamental constitutional import arise—thus “rarely, and
under special constitutional conditions”—distinguishing sharply between such
“higher lawmaking” and the ordinary politics of governmental action.291 Larry
Kramer too describes a normally quiescent populace that is roused to action by
constitutional crises or by controversial governmental actions, such as the
Alien and Sedition Acts, that threaten constitutional values.292 Underlying
both these portrayals is an understanding of constitutions as fundamental law,
establishing a political framework and declaring matters of political principle
rather than detailing the specifics of public policy. In short, constitutional
politics—including popular constitutionalism—is differentiated from normal
politics.
But few state constitutions fit that description. They do, of course,
establish the institutions of state government and proclaim fundamental
principles, but they likewise include detailed policy prescriptions and
numerous restrictions, both substantive and procedural, on the exercise of state
power.293 In part, this reflects the legal character of state constitutions: because
state legislative power is plenary, constitution-makers have had to specify the
limits imposed on that power, and they have done so in great detail. In part,
this reflects political choice: distrust of state legislatures has led the people in
the various states to constitutionalize matters rather than leave them to
legislative discretion.294 In part, the availability of mechanisms for
290 See generally DONALD S. LUTZ, PRINCIPLES OF CONSTITUTIONAL DESIGN 148
(2006) (“[T]he amendment process—[is] a window into both the reality of political
systems and the political theory or theories of constitutionalism underlying them.”).
Donald Lutz has found that the length of constitutions correlates with the frequency of
amendment, presumably because “the more provisions a constitution has, the more targets
there are for amendment, and the more likely the constitution will be targeted because it
deals with too many details that are subject to change.” Lutz, Toward a Theory, supra note
58, at 244.
291 ACKERMAN, FOUNDATIONS, supra note 3, at 6. Ackerman sharply distinguishes in
Chapter One this “dualist democracy” from the “monistic democracy” espoused by many
commentators on the U.S. Constitution. See id. at 3–33.
292 See KRAMER, THE PEOPLE THEMSELVES, supra note 38, at 3–5, 110, 189–90.
293 See TARR, UNDERSTANDING, supra note 9, at 111–21.
294 Id. at 125–26, 157–61.
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constitutional change that do not involve the state legislature—ranging from
constitutional conventions to the constitutional initiative to Florida’s
commissions—has provided ready means for constitutionalizing policy
choices. The fact that in most states it is not much harder to qualify
constitutional initiatives for the ballot than to do so with statutory initiatives
encourages initiative sponsors to choose the constitutional route, regardless of
the narrowness of the policy being adopted.295 In sum, state constitutions are
not merely frameworks of government but also instruments of governance, and
so state constitutional politics is not decisively different from ordinary state
politics.
This in turn affects the operation of popular constitutionalism in the states.
The number and frequency of proposed amendments means that most do not
achieve the salience or generate the sustained public debate that Ackerman
contemplates for dualist democracy. For the most part, popular
constitutionalism in the states is a continuation rather than an alternative to
ordinary politics. Is that enough?
295 See Signature, Geographic Distribution and Single Subject (SS) Requirements for
Initiative Petitions, INITIATIVE & REFERENDUM INST., http://www.iandrinstitute.org/docs/
Almanac-Signature-and-SS-and-GD-Requirements.pdf [https://perma.cc/YVJ9-RA6D].